H.C-NRLF 


ill 


SAI^I, 


Digitized  by  the  Internet  Archive 

in  2007  with  funding  from 

IVIicrosoft  Corporation 


http://www.archive.org/details/digestofdavismilOOballrich 


DIGEST 


OF 


DAVIS'  Military  Law 


OF  THE 


UNITED  STATES 

.  AND 

The  Manual  for  Courts-Martial 

INCLUDING 

THE  ARTICLES  OF  WAR 

REVISED  TO  AUGUST  29,  1G1.6 


EY 

H.  G.  BALL 

First  IvI^ut^nant  of  Infantry 


1917 

Franklin  Hudson  Publishing  Company 

Kansas  City,  Mo. 


14 1^"' 


oo 


Copyright  ]  9 17,  by 

FRANKLIN  HUDSON  PUBLISHING  CO., 

Kansas  City,  Mo. 


PREFACE. 

This  little  compilation  has  been  prepared  for  the 
purpose  of  presenting  succinctly  certain  basic  facts  of 
Military  Law  and  the  procedure  of  courts-martial  which 
the  lapse  of  time  frequently  renders  hazy.  It  consists 
of  a  Digest  of  Davis'  Military  I^aw  of  the  United  States, 
of  Questions  and  Answers  on  the  Manual  for  Courts^ 
Martial,  and  the  Articles  of  War  as  revised  to  August 
29,  1916.  Paragraph  topics  ^re  identical  with  those  in 
the  original.  The  number  preceding  each  paragraph  cor- 
responds to  the  number  of  the  page  on  which  may  be 
found  the  same  subject  in  the  origmal. 

For  those  who  may  be  said  to  have  graduated  in 
military  law  the  information  contained  in  the  following 
pages  will  be  found  useful  as  an  aid  to  the  memory  in 
quick  preparation  for  an  examination.  It  is  hoped  this 
little  work  may  serve  the  convenient  end  of  reducing  to 
a  minimum  the  drudgery  of  reading  many  pages  of  subject- 
matter  with  which  the  student,  is  already  presumed  to 
be  familiar. 


366700 


TABLE  OF  CONTENTS. 


Page 

Chapter          I.     Introductory 5 

Chapter        II.     Military  Tribunals;    Courts-Martial, 

Their  Ork^n  and  Function 9 

Chapter      III.     The  Constitution  of  Courts-Martial; 

The  General  Court-Martial 10 

Chapter       IV.     The  Composition  of  Courts-Martial    ....  12 

Chapter         V.     The  Jurisdiction  of  Courts-Martial 13 

Chapter       VI.     Arrest  and  Confinement;    The  Arrest 

OF  Officers 17 

Chapter     VII.     Charges  and  Specifications 18 

Chapter   VIII.     The  Incidents  of  the  Trial 20 

Chapter       IX.     Punishments 36 

Chapter        X.     The  Record 40 

Chapter       XI.     The  Reviewing  Authority 41 

Chapter  XIII.     Courts  of  Inqi  iry 44 

Chapter    XIV.     Miijtary  Boards 45 

Chapter     XV.     Evidence 47 

Chapter    XVI.     Martial  Law 68 

Chapter  XVII.     Habeas  Corpus 72 

Chapter  XIX.     The  Articles  of  War 74 

Questions  and  Answers  on  Manual  for  Courts-Martial.  85 
Questions  and  Answers  on  General  Order  No.  70,  War 

Department,  1914 101 

The  Revised  Articles  of  War , 105 


Military  Law  of  the  United  States. 


CHAPTER  I. 

2.  Origin  and  History. — In  great  part  derived  from 
rules  of  discipline  in  the  British  Army  at  the  outbreak  of 
the  American  Revolution.  These  rules  had  the  following 
origin  and  development: 

2.  From  Norman  Conquest  to  Accession  of  James  I . 
— During  this  period  rules  for  government  of  military 
forces  were  established  by  the  king  and  enforced  by  the 
[following  tribunals: 

(a)  Constable's  and  Marshal's  Court; 

(b)  Court  of  Chivalry. 

The  last  intruded  on  the  jurisdiction  of  the  common  law 
and  ceased  to  exist  in  the  reign  of  Henry  VIII. 

2.  Military  Law  Subsequent  to  the  Revolution  of 
1688;  Mutiny  Act. — All  matters  affecting  discipline  not 
provided  for  in  the  Mutiny  Act  (authorized  trial  of  mutiny 
and  desertion  by  court-martial)  were  left  to  be  regulated 
by  the  sovereign  as  commander-in-chief,  in  accordance 
with  the  body  of  rules  called  "Articles  of  War."  In  1879 
the  Mutiny  Act  and  the  Articles  of  War  were  merged  into 
the  Army  Discipline  Act,  re-enacted  in  1881. 

3.  Mutiny  Act ;  Articles  of  War.— Between  1689  and 
1881  military  discipHne  in  England  was  regulated  by: 


6  Digest  of  Davis'  Military  Law  of  the  U.  S. 

(a)  Mutiny  Act:  statutory  in  character;  con- 

tained more  important  disciplinary  pro- 
visions and  also  power  to  appoint  mili- 
I  tary  tribunals. 

(b)  The  Articles  of  War,  issued  by  the  sover- 

eign, were  non-statutory  and  contained  a 
great  body  of  rules  for  the  government 
and  discipline  of  military  forces. 
4.     Classification  of  Military  Law. — As  a  considerable 
part  of  the  military  law  of  the  United  States  is  derived ' 
from  usages  and  customs  of  the  service,  these  laws  are 
classified,  according  to  form,  into  written  and  unwritten 
laws. 

The  written  law  consists  of: 

(a)  Enactments  of  Congress  Respecting  Mili- 
tary Establishment. — Rules  and  Ar- 
ticles OF  War. — A  body  of  statutory 
rules,  enacted  under  authority  of  the 
Constitution,  and  contain  the  greater 
part  of  the  military  law  of  the  United 
States.  Other  enactments :  Revised  Stat- j 
utes  and  Statutes  at  Large.  1 

Distinction  Between  Military  and 
Martial  Law. — Military  Law  is,  in 
part,  statutory  and  regulates  the  conduct 
of  military  persons  at  all  times  within  as 
well  as  without  territorial  jurisdiction  of 
the  United  States.  It  ' '  follows  the  flag, ' ' 
not  only  in  time  of  peace,  but  in  time 
of  war. 
Martial  Law  is  not  statutory  in  character, 


and  the  Manual  for  Courts-Martial  7 

and  always  arises  out  of  strict  military 
necessity.  It  comes  into  being  in  hos- 
tile territory  in  time  of  war  or  in  a  part 
of  the  United  States  territory  where  the 
civil  authority  is  unable  to  exercise  its 
functions. 

(b)  Decisions  of  Courts. — The  Federal  courts 
•     interpret  laws;  their  decisions  are  of  high- 
est authority  upon  the  subjects  to  which 
they  relate. 

(c)  Decisions  of  the  President;  Opinions  of  the 

Attorney  General,  of  the  Secretary  of 
War,  and  the  Judge-Advocate  General, 
etc. 

6.  Army  Regulations. — Next  in  authority  to  (a)  and 
(b)  above  are  the  General  Regulations  and  Standing  Or- 
ders of  the  Army — administrative  rules  relating  to  mil- 
itary affairs  issued  by  the  President.  They  have  the 
obligatory  force  of  law,  but  shall  not  conflict  with  the  en- 
actments of  Congress. 

7.  Conformity  to  Statutes. — Army  regulations  are 
executive  or  administrative  rules  and  directions  as  dis- 
tinguished from  statutes. 

Regulations,  like  statutes,  are  intended  to  operate 
in  the  future. 

8.  Classification. — Regulations  are  classified: 

(a)  Those  which  have  received  the  sanction  of 
Congress;  Army  Regulations. 

(6)  Those  made  pursuant  to  and  in  aid  of  a 
statute;  examination  and  promotion  of 


8  Digest  of  Davis'  Military  Law  of  the  U.  S. 

enlisted  men;    executive  order  prescrib- 
ing limits  of  punishment. 

9.  Military  Orders. — Orders  are  authoritative  direc- 
tions, respecting  the  military  service,  issued  by  military 
commanders  with  a  view  to  regulate  the  conduct  of  mili- 
tary persons,  or  control  the  movements  or  operations  of 
individuals  or  organizations  under  their  several  commands. 

10.  Unwritten  Military  Law,  the  Custom  of  War, 
and  the  Customs  of  Service. — Unwitten  military  law  is 
made  up  of  customs  of  the  service  or  of  ^Hhe  custom  of 
war.'^  It  is  followed  in  cases  in  which  the  written  law  is 
silent  or  to  which  its  provisions  do  not  apply.  Where 
sentence  is  discretionary,  a  court-martial  may  impose  any 
punishment  sanctioned  by  the  custom  of  the  service. 

10.  Conditions  Essential  to  the  Validity  of  a  Custom 
of  the  Service. — Usage  is  an  act  or  practice  which,  by 
constant  and  regular  repetition,  has  gradually  acquired 
the  force  of  law. 

Custom  applies  to  the  legal  sanction  developed  by 
long-continued  adherence  to  a  particular  usage,  and  must 
fulfill  the  following  conditions: 

(a)     It  must  be  long  continued; 
(6)     It  must  be  generally  known  and  iavariably 
observed  by  those  who  are  subject  to  its 
operation ; 
(c)     It  must  be  compulsory; 
{d)     It  must  not  be  in  opposition  to  the  terms  of 
a  statute. 
12.     Usages. — The  fact  that  usages  exist  can  never 
be  pleaded  in  justification  of  conduct  otherwise  criminal, 
nor  relied  upon  as  a  complete  defense  in  a  trial  by  court- 
martial.  , 


and  the  Manual  for  Courts-Martial 
CHAPTER  II. 


Military  Tribunals;  Courts-Martial;  Their 
Origin  and  Function. 

14.  The  Earl  Marshal. — The  earl  marshal  was  a 
military  officer  next  in  rank  to  the  constable,  and  his 
duties  resembled  those  now  performed  by  the  Adjutant 
General.  When  the  office  of  constable  ceased  to  exist, 
his  duties  were  performed  by  the  earl  marshal,  and  the 
court  of  the  constable  came  to  be  known  as  the  ^'marshal's 
court '^  or,  in  the  modern  form,  as  the  ^'court-martial.'^ 

15.  Courts-Martial,  Their  Authority  and  Function. 
— Military  Law  is  enforced  by  courts-martial.  Their 
sentences  are  in  the  nature  of  recommendations  merely 
until  approved  by  reviewing  authority. 

15.  Courts-Martial  Executive  Agencies.  —  Courts- 
martial  are  not  part  of  the  judiciary  of  the  United  States, 
but  simply  instrumentalities  of  the  executive  power. 
They  are  creatures  of  orders.  Their  judgments  are  not 
subject  to  be  appealed  frcan,  set  aside,  or  reviewed  by 
any  civil  court. 

1 6.  Military  Tribunals  Courts  of  Honor. — They  try 
many  accusations  based  upon  acts  unknown  to  civil  courts 
as  criminal  offenses. 

1 6.  Classification.  —  Courts-martial,  according  to 
jurisdiction,  are  classified* 

(a)  General  Courts-Martial; 

(b)  Inferior  Courts  -  Martial  —  Special  Courts- 

Martial  and  Summary  Courts. 


10  Digest  of  Davis'  Military  Law  of  the  U.  S. 


CHAPTER  III. 


The  Constitution  of  Courts-Martial;  The  General 
Court-Martial. 

18.  Military  Commanders. — The  following  are  em- 
powered to  appoint  general  courts-martial: 

(a)  The  President; 

(b)  The  commanding  officer  of  a  territorial  di- 

vision or  department; 

(c)  The     Superintendent     of     the     Military 

Academy; 

(d)  The  commanding  officer  of  an  army,  field 

army,  army  corps,  a  division,  or  separate 
brigade; 

(e)  Any  commanding  officer  when  so  empow- 

ered by  the  President. 
Except  in  certain  cases,  an  officer  or  soldier  cannot 
demand  a  court-martial  in  his  own  case. 

1 8.  Nature  of  Authority. — The  authority  to  order  a 
court-martial  is  an  attribute  of  command  and  cannot  be 
delegated  to  a  subordinate. 

19.  Appointing  an  Officer  as  Accuser  or  Prosecutor. 
— No  officer  is  eligible  to  sit  as  a  member  of  a  court-martial 
when  he  is  the  accuser  or  a  material  witness  for  the 
prosecution. 

Where  a  commander  initiates  a  charge  out  of  a  hos- 
tile animus  toward  the  accused  or  a  personal  interest  ad- 
verse to  him,  he  is  deemed  an  ^^ accuser''  or  ^^ prosecutor.' ' 


and  the  Manual  for  Courts-Martial  11 

THE  INFERIOR  COURTS-MARTIAL. 

23.  The  Special  Court-Martial  may  be  appointed 
by  the  commanding  officer  of  a  district,  garrison,  fort, 
camp,  or  other  place  where  troops  are  on  duty;  or  by  the 
commanding  officer  of  a  brigade,  regiment,  detached  bat- 
taUon,  or  other  detached  command ;  or  by  superior  au- 
thority when  deemed  desirable. 

25.  The  Summary  Court  may  be  appointed  by  the 
commanding  officer  of  a  garrison,  fort,  camp,  or  other 
place  where  troops  are  on  duty,  or  by  the  commanding 
officer  of  a  regiment,  detached  battalion,  detached  com- 
pany, or  other  detachment;  or  by  superior  authority  when 
deemed  desirable. 

25a.    Power  to  Punish: 

(a)     General  courts  -  martial  may  impose  any 
punishment  authorized  to  be  imposed  by 
a  military  tribunal  in  the  Articles  of  War. 
(6)    Special  courts-martial  have  power  to  ad- 
judge   punishment    not    to    exceed    six 
months^  confinement  or  forfeiture  of  six 
months'  pay,  or  both,  and,  in  addition 
thereto,  reduction  in  case  of  non-commis- 
sioned officers  and  first-class  privates. 
(c)     Summary  courts  have  power  to  adjudge 
punishment  not  to  exceed  three  months' 
confinement  or  forfeiture  of  three  months' 
pay,  or  both,  and  reduction  in  addition 
thereto. 
When  the  summary  court  is  also  the  commanding 
officer,  punishment  in  excess  of  one  month  will  not  be 
executed  until  approval  by  superior  authority. 


12  Digest  of  Davis'  Military  Law  of  the  U.  S. 


CHAPTER  IV. 


The  Composition  of  Courts-Martial. 

26.  Composition  in  General. — Must  be  composed 
of  commissioned  officers  on  the  active  list. 

27.  Courts-Martial  for  the  Trial  of  the  Militia.— 
Courts-martial  for  the  trial  of  officers  or  men  of  the  militia 
shall  be  composed  of  militia  officers  only.  Officers  of 
militia  may  sit  on  courts-martial  for  the  trial  of  officers 
or  enlisted  men  of  the  regular  Army. 

27.  Volunteers. — Courts-martial  for  the  trial  of  vol- 
unteers must  be  composed  of  volunteer  officers. 

27a.  Number  of  Members. — General  courts-martial 
are  composed  of  from  five  to  thirteen,  inclusive. 

30.  Composition  of  Inferior  Courts-Martial. — Spe- 
cial courts  are  composed  of  from  three  to  five,  inclusive. 

38.  Coimsel  for  Accused. — The  accused  is  not  en- 
titled as  of  right  to  counsel,  but  the  privilege  is  invariably 
conceded,  and  where  unreasonably  refused,  such  refusal 
may  constitute  ground  for  disapproval  of  the  proceedings . 

39.  Counsel  for  Enlisted  Men. — The  privilege  of 
counsel  does  not  apply  in  summary  court  cases. 

41.  Interpreters  are  entitled  to  pay  and  allowances 
of  civilian  witnesses. 

41.  Clerks. — An  enlisted  man  employed  as  stenog- 
rapher is  entitled  to  five  cents  for  each  one  hundred  words 
taken  in  shorthand  and  transcribed. 


I'nd  the  Manual  for  Courts-Martial  13 


CHAPTER  V. 


The  Jurisdiction  of  Courts-Martial. 

42.  Sources. — The  jurisdiction  of  courts-martial  is 
conferred  by  the  Articles  of  War  and  other  similar  en- 
actments of  Congress. 

42.  Military  Jurisdiction  of  Courts-Martial  is 
exclusively  criminal  in  character  and  has  no  jurisdiction 
over  property  or  property  interests.  It  is  exclusive  as  to 
military  offenses. 

43.  Concurrent  Jurisdiction. — Civil  and  military 
courts  can  never  have  it  in  its  strict  sense. 

43.  Classification. — Military  jurisdiction,  according 
to  its  relation  to : 

(a)     Place, 

(6)    Time, 

(c)     Persons,  or 

{d)     Offenses. 
43.    Jurisdiction  as  to  Place. 

(a)  Not  being  restricted  as  to  territory,  it  cov- 
ers all  military  offenses,  committed  by 
military  persons,  within  or  beyond  the 
territorial  limits  of  the  United  States. 

Q))  Restriction  upon  Convening  Author- 
ity.— Convening  officers  may  convene 
courts-martial  only  within  their  terri- 
torial command;  the  President  and  Sec- 
retary of  War,  at,  any  place  within  the 
jurisdiction  of  the  United  States. 


14  Digest  of  Davis'  Military  Law  of  the  U.  S. 

44.    Jurisdiction  in  Point  of  Time. 

(a)  The  Statutes  of  Limitation  operate  to  de- 
prive the  courts  of  power  to  try  certain 
offenses  when  a  period  of  time,  expressly 
stated  in  the  statute,  has  elapsed  since 
their  commission.  To  become  effective, 
it  should  be  pleaded  and  proved. 

(6)  Limitations  at  Military  Law. — Two  Stat- 
utes of  Limitation  form  part  of  the  mili- 
tary law  of  the  United  States.  One  is, 
no  person  shall  be  liable  to  trial  and  pun- 
ishment for  an  offense  committed  more 
than  two  years  before  issuing  the  order 
for  such  trial,  unless  he  is  not  amenable 
to  justice  during  that  period  by  reason 
of  absence  from  military  jurisdiction. 

(c)  The  Statute  of  Limitation  in  Desertion  is 
the  other  and  refers  to  time  of  peace  only. 
46.    Jurisdiction  as  to  Persons. 

(a)  Amenability  in  General. — No  person  can  be 
subjected  to  military  jurisdiction  without 
his  consent,  as  evidenced  by  his  volun- 
tary entrance  into  the  military  service. 

(6)  To  What  Persons  Applicable.  —  Military 
law  in  general  is  applicable  to  military 
persons  alone. 

(1)  The  regular  and  volunteer  forces  of 

the  United  States. 

(2)  The  MiHtia  is  composed  of  all  able- 

bodied  male  citizens  between  18  and 
45  years. 


and  the  Manual  for  Courts-Martial  15 

(3)  Retainers  to  the  camp,  camp-follow- 

ers, and  civilian  employees.  The 
statute  is  restricted  in  its  operation 
to  persons  accompanying  armies  in 
the  field  in  time  of  war. 

(4)  Relieving  or  giving  intelligence  to 

the  enemy;  and  certain  persons  be- 
come subject  to  military  jurisdic- 
tion as  a  consequence  of  commit- 
ting certain  offenses  in  time  of  war, 
as:  those  who  relieve  the  enemy 
with  money,  victuals,  ammunition, 
or  knowingly  protect  him;  those 
who  hold  correspondence  with  or 
give  intelligence  to  the  enemy; 
spies. 

(5)  Inmates  of  Soldiers'  Homes  and  of 

the  National  Home  for  Disabled 
Volunteer  Soldiers  are  subject  to 
the  Rules  and  Articles  of  War. 

(c)  The  Period  of  Amenability  begins  with  the 

voluntary  entry  into  the  service. 

(d)  Enlistment  consists  in  the  execution  of  a 

contract)  to  which  the  United  States  and 
the  enlisted  man  are  parties. 

(e)  Termination  of  Liability. — The  enlistment 

contract  is  normally  terminated  at  the 
expiration  of  the  period  of  enlistment  by 
a  formal  discharge. 
(/)     Jurisdiction    Cease,s    After    Expiration    of 
Service. — The  enlisted  man  ceases  to  be 


16  Digest  of  Davis'  Military  Law  of  the  U.  S. 

amenable  to  military  jurisdiction  for  of- 
fenses committed  while  in  the  service  aft- 
er he  has  been  separated  therefrom  and 
has  become  a  civilian. 

59.  Jurisdiction  as  to  Offenses. — It  embraces  of- 
fenses defined  in  the  Articles  of  War,  and  the  offense  of 
mihtary  persons  trading  with  the  enemy,  and  that  of 
fraudulently  enlisting  in  the  service  of  the  United  States. 

60.  Persons  Exclusively  Triable  by  General  Courts- 
Martial. — General  courts-martial  have  exclusive  jurisdic- 
tion over  officers  and  cadets;  over  enlisted  men  they  have 
concurrent  jurisdiction  with  the  inferior  courts,  and  ex- 
clusive jurisdiction  over  all  offenses  punishable  capitally. 

60a.  Appellate  Jurisdiction.  —  The  jurisdiction  of 
courts-martial,  being  final,  cannot  be  subject  of  appeal  to 
a  higher  military  tribunal  or  to  a  civil  court. 


and  the  Manual  for  Courts-Martial  17 


CHAPTER  VI. 


Arrest  and  Confinement;  The  Arrest  of  Officers. 

61.  Arrest  of  Commissioned  Officers. — The  arrest 
may  be  accomplished  by  the  commanding  officer  in  per- 
son; usually  by  a  staff  officer,  by  means  of  oral  or  written 
order.  Only  the  commanding  officer  can  place  officers  in 
arrest.  The  court  cannot  interfere  to  cause  a  close  arrest 
to  be  enlarged. 

Note:  An  arrest  is  not  necessarily  an  essential 
preliminary  to  trial. 

62.  Status  of  Arrest. — An  officer  in  arrest  is  without 
power  to  perform  any  duties  incident  to  his  rank  or  station. 
He  has  no  right  to  demand  a  court-martial.  All  his  re- 
quests are  to  be  made  in  writing.  The  status  of  arrest 
does  not  affect  his  right  to  receive  pay. 

64.  Restrictions  upon  the  Durations  of  Arrests. — 
Officers  in  arrest  are  served  with  a  copy  of  the  charges 
within  eight  days  after  the  arrest;  trial  to  follow  within 
ten  days  after  arrest,  unless  prevented  by  the  necessities 
of  the  service,  when  an  additional  period  of  thirty  days 
is  allowed,  making  a  period  of  forty  days  after  arrest. 


18  Digest  of  Davis'  Military  Law  of  the  U.  S. 

CHAPTER  VII. 


Charges  and  Specifications. 

69.  The  Charge  is  the  instrument  in  which  the 
military  offense  against  an  accused  person  is  set  forth. 
A  miUtary  charge  properly  consists  of  two  parts — the 
technical  '^ charge'^  and  the  ^^specification.''  The  former 
designates  by  its  name  the  alleged  offense,  the  latter  sets 
forth  the  facts  of  such  offense. 

70.  The  Specifications  should  fulfill  the  following 
*  conditions : 

(a)  The  offender  to  be  described  as  a  member 

of  a  military  establishment  or  as  amena- 
ble to  military  discipline. 

(b)  The  facts  of  the  offense  should  be  set  forth. 

(c)  An  allegation  of  criminal  intent  by  the  use 

of  words — willfully,  knowingly,  etc. 
It  is  held  to  be  sufficient  as  a  legal  basis  for  trial  and 
sentence  if  the  charge  and  specification,  taken  together, 
amount  to  a  statement  of  a  military  offense. 

71.  Exclusion  of  Evidence  from  Specifications. — 
The  specifications  should  contain  facts  constituting  the 
offense,  not  evidence  by  which  such  facts  are  supported. 

71 .  General  Terms ;  Specific  Articles. — A  charge  ex- 
pressed in  too  general  terms  is  faulty  and  imperfect,  so 
too  is  a  charge  expressed  in  the  alternative,  as  either, 
under  Article  83  or  Article  94,  is  irregular  and  defective . 

Where  the  offense  is  clearly  defined  in  a  specific  ar- 
ticle, it  is  improper  to  charge  it  under  another  specific 
article. 

72.  Charges  Under  Several  Forms. — The  prosecu- 


and  the  Manual  for  Courts-Martial  19 

tion  may  charge  an  act  under  two  or  more  forms  where  it 
is  doubtful  under  which  it  will  more  properly  be  brought 
by  the  testimony. 

72.  Allegations  as  to  Persons. — The  accused  should 
be  described  by  his  true  name,  rank,  and  station  in  the 
military  service. 

75.  Joint  Charges. — To  warrant  joining  of  several 
persons  in  the  same  charge  and  trying  them  together,  the 
offense  must  be  such  as  requires  a  combination  of  action, 
committed  by  the  accused  in  concert  or  in  pursuance  of 
a  common  intent;  concert  is  not  necessarily  established 
by  the  mere  fact  of  their  committing  the  same  offense  to- 
gether at  the  same  time. 

76.  By  Whom  Preferred. — By  any  officer.  The  fact 
that  he  is  himself  under  charges  or  in  arrest  does  not 
disqualify  him  from  preferring  charges. 

79.  Action  of  Post  Commander. — Upon  receipt  ot 
charges,  he  is  required  to  personally  investigate  them  to 
satisfy  himself — 

(a)     Whether  the  case  is  one  in  which  a  trial  is 

necessary  to  the  interests  of  discipline; 
(h)    If  he  believes  trial  necessary,  whether  the 
evidence  will  support  a  conviction. 
A  summary  court  is  without  jurisdiction  to  try  a 
non-commissioned  officer  if  he  objects  to  such  trial,  save 
with  the  authority  of  the  officer  competent  to  order  his 
trial  by  general  court-martial. 

80.  Service  of  Charges  upon  the  Accused. — It  is  the 
duty  of  the  judge-advocate  to  furnish  the  accused  with  a 
copy  of  the  charges  within  a  reasonable  time  previous  to 
trial. 


20  Digest  of  Davis'  Military  Law  of  the  U.  S. 


CHAPTER  VIII. 


The  Incidents  of  the  Trial. 

82.  Meeting  of  Court-Martial. — If  less  than  a  statu- 
tory quorum  is  present,  the  court  cannot  transact  business, 
but  may  adjourn  from  day  to  day  to  await  the  arrival  of 
absent  members. 

Note:  Communications  from  convening  authority  as 
such  should  be  made  to  the  president  as  its  organ;  com- 
munications relating  to  the  conduct  of  the  prosecution 
should  be  made  to  the  judge-advocate. 

85.  Clerk  to  Assist  the  Judge- Advocate. — ^The  con- 
vening authority  may  detail  an  enlisted  man  to  assist  the 
judge-advocate  of  a  general  court-martial  in  the  prep- 
aration of  the  record  when  the  services  of  a  reporter 
are  not  deemed  necessary. 

CHALLENGES. 

85.  Procedure.— ;Only  one  member  at  a  time  will 
be  challenged. 

85.  Nature  of  the  Right. — This  is  restricted  in  two 
particulars : 

(a)  A   member   may   be    challenged    only    for 

cause  stated  to  the  court. 

(b)  ''Challenges  to  the  array'' — i.  e.,  objection  to 

the  entire  membership — are  forbidden. 
Note:  There  is  no  authority  for  challenging  a  judge- 


and  the  Manual  for  Courts-Martial  21 

advocate.  He  is  disqualified  as  such  when  personally  in- 
terested as  accuser  or  prosecutor. 

The  court  cannot  excuse  a  member  in  the  absence  of 
a  challenge. 

A  member  not  challenged,  but  considering  himself 
disqualified,  can  be  relieved  only  by  application  to  the 
convening  authority. 

It  is  not  necessary  for  members  to  withdraw  on  being 
challenged,  but  it  is  customary. 

86.  Classification  of  Challenges. 

(a)  Principal  Challenge. — A  challenged  mem- 
ber is  excused  from  sitting  when  ground 
of  challenge  has  been  established. 

(6)  A  Challenge  to  the  Favor. — One  alleging 
bias,  prejudice,  or  interest  to  exist.  It 
may  or  may  not  be  sustained. 

87.  Waiver  of  Challenge. — As  a  rule,  objection  to 
the  competency  of  a  member  must  be  brought  before  ar- 
raignment, and  if  the  accused  is  aware  of  it  at  that  time 
and  fails  to  bring  it  forward,  he  will  be  deemed  to  have 
waived  his  right  of  challenge. 

Should  ground  for  objection  be  developed  at  a  later 
stage,  it  being  unknown  to  the  accused  before  arraign- 
ment, the  court  may  permit  the  objection  to  be  raised  at 
any  stage  of  the  trial. 

87.  Challenges  by  Judge-Advocate  may  be  made  in 
behalf  of  the  United  States. 

.  87.     Incompetency,    How    Established.  —  Incompe- 
tency is  established  by: 
(a)     Voluntary  admission  of  the  member; 
(6)    Testimony  of  witnesses; 


22  Digest  of  Davis'  Military  Law  of  the  U.  S. 

(c)     Examination  of  a  member  on  his  voir  dire, 

88.  The  Accuser;  Material  Witnesses.  —  It  is  suf- 
ficient ground  to  challenge  a  member  if  he  is  the  accuser 
or  a  material  witness.  The  mere  fact  that  he  is  a  witness 
or  preferred  the  charges  is  not  generally  sufficient  ground. 

89.  Opinion,  to  disqualify,  must  be  positive  and 
decided  in  character  and  formed  after  deliberation  upon 
facts  in  the  case  and  conversation  with  witnesses  or 
reports  of  testimony. 

89.  Bias  or  Prejudice;  Rank  of  Member. — An  offi- 
cer cannot  successfully  challenge  a  member  merely  be- 
cause of  being  of  a  rank  inferior  to  his  own. 

CONTINUANCES. 

90.  Procedure. — A  motion  for  a  continuance  must 
be  supported  by  evidence,  usually  in  affidavit  form. 

90.  Causes  for  Postponement. — In  advance  of  the 
trial,  application  for  postponement  should  be  made  to 
the  convening  authority. 

THE  ARRAIGNMENT. 

'  96.  Pleadings. — A  pleading  is  a  statement,  in  log- 
ical and  legal  form,  of  facts  constituting  a  particular 
cause  of  action  or  ground  of  defense.  Charges  and  speci- 
fications aie  part  of  pleadings  in  a  case,  to  which  the  ac- 
cused is  required  to  make  answer,  known  as  the  ^'plea.'^ 
If  the  plea  is  '^guilty''  or  '^not  guilty,'^  the. accused  is  ,• 
said  to  plead  the  '^general  issue. '^  ' 

The  reading  of  the  charges  and  ^^ pleas'^  thereto  con-  i 
stitute  the  arraignment,   during  which    the  judge-advo- 
cate, accused,  and  counsel  stand. 


and  the  Manual  for  Courts-Martial  23 

96.  Classification  of  Pleas  as  to  their  nature  and 
effects: 

(a)  To  the  jurisdiction; 

(b)  In  bar  of  trial; 

(c)  In  abatement; 

(d)  To  the  ^^ general  issue." 

96.  Pleas  to  the  Jurisdiction. 

(a)  The  court  must  have  been  properly  con- 
stituted; 

(6)  The  accused  must  be  subject  to  its  juris- 
diction; 

(c)     The  crime  must  be  a  military  offense. 

97.  Objections  to  Constitution  of  the  Court.  —  It 
may  be  alleged  that  the  convening  officer  is  without  au- 
thority to  convene  the  court. 

97.  Convening  Officer  as  Accuser. — Where  he  him- 
self initiates  the  charge  out  of  a  hostile  animus  toward 
the  accused  or  a  personal  interest  adverse  to  him,  he  is 
deemed  an  ^^ accuser"  or  ^'prosecutor." 

98.  Amenability  of  Accused  to  Trial. — The  person 
accused  should  be  amenable  to  military  jurisdiction. 
Civilians  are  amenable  to  trial  by  court-martial  in  time 
of  war  in  the  immediate  theater  of  operations  only. 

100.  Plea  in  Bar  of  Trial  admits  jurisdiction  as  to 
class  of  cases  and  general  amenability  of  the  accused,  but, 
for  reasons  stated,  denies  the  right  of  the  court  to  try  the 
particular  case  before  it.  A  plea  in  bar  of  trial  is  appro- 
priate in  the  following  cases: 

1 00.  A  Previous  Acquittal  or  Conviction  of  the  Same 
Offense. 


24  Digest  of  Davis'  Military  Law  of  the  U.  S. 

(a)  The  accused,  having  been  duly  convicted 
or  acquitted,  cannot  be  subjected  to  a 
second  military  trial  for  the  same  offense 
except  by  and  upon  his  own  waiver  and 
consent. 

102.  New  Trials. 

(6)  New  trials  are  only  authorized  where  sen- 
tence has  been  disapproved  by  the  re- 
viewing authority  and  the  accused  has 
asked  for  a  second  trial. 

After  sentence  has  been  approved  and  has 
taken  effect,  the  granting  of  a  new  trial 
is  beyond  any  power. 

Where  an  accused,  who  has  been  tried  by 
[  a  civil  court   for  a   criminal    offense,  is 

brought  to  trial  by  a  court-martial  for  a 
military  offense  involved  in  a  criminal 
act,  he  cannot  plead  ^^a  former  trial'' 
(and  vice  versa), 

103.  Pardon. 

(c)  A  pardon  is  an  act  of  grace,  which  exempts 
the  individual  upon  whom  it  is  conferred 
from  the  punishment  which  the  law  in- 
flicts for  the  crime  he  has  committed. 
A  pardon  must  be  pleaded — that  is,  sub- 
mitted to  the  court — in  accordance  with 
the  rules  regulating  the  production  of 
documentary  evidence,  in  order  that  the 
court  may  give  it  effect  in  support  of  a 
plea. 


and  the  Manual  for  Courts-Martial  25 

105.  Pardoning  Power,  How  Exercised. — First,  hj 
the  proclamation  of  pardon  or  amnesty,  which  originates 
with  the  President,  and  has  been  issued  in  several  in- 
stances in  behalf  of  deserters  and  absentees  without  leave ; 
second,  by  the  remission  of  a  military  sentence,  which 
relieves  the  person  from  punishment  or  the  unexecuted 
portion  of  a  sentence;  third,  the  offense  may  be  par- 
doned— that  is,  condoned — before  prosecution  has  com- 
menced, by  restoration  to  duty,  without  trial. 

106.  Constructive  Pardon  is  a  condonation  of  an 
offense  by  the  action  of  a  military  superior,  the  effect  of 
which  is  to  abandon  or  desist  from  the  prosecution  of  a 
particular  offender.  Where  a  military  person  who  is 
under  charges  is  released  from  arrest  or  confinement  and 
restored  to  duty  by  authority  competent  to  order  his  trial, 
there  is  said  to  be  a  '' constructive  pardon,"  which  may 
be  pleaded  in  bar  of  trial.  A  constructive  pardon  will  or- 
dinarily be  proved  by  testimony  of  witnesses  as  to  its 
source  and  authority. 

PLEAS  IN  ABATEMENT. 

1 07.  Nature  and  Character.  —  It  is  a  motion  to 
abate — that  is,  to  set  aside — a  particular  specification  to 
which  it  is  addressed,  on  the  ground  that  it  contains  some 
defect,  which  is  alleged  to  be  fatal  to  the  maintenance  of 
the  action.  Such  pleas  serve  only  to  defer  a  particular 
trial  and  are  not  favored  in  military  practice. 

Pleas  in  abatement  usually  relate  to  misnomers  in 
the  specifications ;  to  false  additions,  as  when  the  accused 
is  incorrectly  described ;  and  to  cases  described  by  the  term 
idem  sonans,  where  the  name  of  the  accused  in  the  plea 


26  Digest  of  Davis'  Military  Law  of  the  U.  S. 

and  specifications,   though  spelled  differently,   are  sub- 
stantially identical  in  sound. 

It  is  not  essential  to  state  in  a  specification  the  full 
Christian  name;  only  such  name  or  initial  need  be  given 
as  will  unmistakably  identify  the  party.  A  misnomer 
in  a  charge  consisting  of  an  erroneous  middle  name  or 
initial  may  be  disregarded  without  affecting  the  validity 
of  the  finding. 

108.  Where  Charges  upon  Which  an  Accused  Per- 

son Is  Arraigned    Differ  Materially  from 
Those  Served  upon  Him. 
(a)     This  may  be  taken  advantage  of  by  a  plea 
in  abatement. 

109.  Name  of  Accuser  or  Prosecutor. 

(6)    The  accused  is  entitled  to  know  the  name 

and  designation  of  the  accuser  in  the  case. 

1 09.    Other  Objections  to  Charges,  How  Disposed  of. 

(c)  Objections  to  charges  in  matters  of  form 
should  be  taken  advantage  of  by  pleas 
in  abatement.  Such  are  objections  to 
specifications,  as  '' inartificial,''  'indefin- 
ite,'' or  '^ redundant";  or  as  misnaming 
the  accused  or  misdescribing  him  as  to 
his  rank  or  office;  or  as  containing  insuf- 
ficient allegations  of  time  or  place,  etc. 
Where  the  accused  pleads  ''guilty"  or  "not 
guilty"  to  a  specification  in  which  he  is 
incorrectly  named  or  described,  such  plea . 
is  an  admission  of  his  identity  with  the; 
person  thus  designated. 


and  the  Manual  for  Courts-Martial  27 

109.  Failure  to  Serve  Charges. 

(d)  An  accused  person  is  entitled  to  receive  a 
copy  of  the  charges  in  sufficient  time  to 
enable  him  to  secure  attendance  of  the 
witnesses  and  prepare  his  defense. 

110.  Procedure  in  Respect  to  Pleas. — A  plea  that 
is  substantiated  may  operate  to  cause  the  charge  or  spec- 
ification to  which  it  is  addressed  to  be  stricken  out  or 
materially  amended. 

The  matter  should  be  logically  and  concisely  stated 
by  the  accused  in  support  of  his  plea,  which  should  be 
submitted  in  writing. 

The  accused  is  entitled  to  be  first  heard  in  its 
support. 

111.  Statutes  of  Limitation  in  criminal  cases  are 
enactments  which,  if  pleaded  in  defense,  operate  to  de- 
prive the  State  of  the  power  to  try  and  punish  an  offender 
after  the  lapse  of  a  specific  period  since  the  offense  was 
committed. 

113.  Demurrers. — The  office  of  a  demurrer  is  to 
raise  an  issue  of  law,  as  distinguished  from  the  issue  of 
fact,  which  arises  when  resort  is  had  to  any  of  the  special 
pleas  already  mentioned;  and  the  issue  of  law  so  raised 
must  be  decided  by  the  court  before  the  trial  can  be 
further  proceeded  with.  A  specification  to  which  a  de- 
murrer is  addressed  must  be  defective  in  some  essential 
respect  in  regard  to  the  definition  or  description  of  the 
particular  military  offense,  or  must  fail  to  set  forth  facts 
sufficient  to  constitute  an  offense  at  military  law. 

114.  Judgment  on  Demurrer. — If  the  demurrer  is 
sustained^  the   accused  is  not  required  to  plead  to  the 


28  Digest  of  Davis'  Military  Law  of  the  U.  S. 

particular  specification  to  which  the  demurrer  has  been 
addressed. 

THE  GENERAL  ISSUE. 

114.  Pleas  to  the  General  Issue. — When  any  of  the 
several  pleas  already  described  have  been  submitted  in 
behalf  of  the  accused  and  have  been  decided  adversely, 
the  accused  is  required  to  plead  to  the  general  issue  as 
distinguished  from  the  special  issues  raised  by  pleas  in 
bar,  etc. 

115.  Statements  Inconsistent  with  Plea  of  Guilty. 
— In  such  a  case  the  court  will  counsel  accused  to  plead 
^'not  guilty,'^  and,  this  plea  being  entered,  will  proceed 
to  a  trial. 

115.  Withdrawal  of  Plea.  —  A  court  -  martial  may 
permit  the  accused  to  withdraw  a  plea  of  ^^not  guilty'^  and 
substitute  another,  and  vice  versa. 

115.  Introduction  of  Testimony  After  a  Plea  of 
Guilty. — Where  the  plea  is  ^'guilty,''  and  where  the  speci- 
fications do  not  fully  set  forth  the  facts  of  the  case,  the 
prosecution  should  be  instructed  by  the  court  to  introduce 
evidence  of  the  circumstances  of  the  offense,  for  the 
reason  that  the  court  may  be  better  enabled  to  estimate 
the  measure  of  the  punishment,  and  further,  that  the  re- 
viewing authority  may  be  better  enabled  to  comprehend 
the  entire  case;  but  it  does  not  apply  where  sentence  is  J 
not  discretionary  with  the  court. 

Wherever,  in  connection  with  a  plea  of  ''guilty,''  a 
statement  is  made  by  the  accused  from  which  it  is  to  be 
gathered  that  evidence  exists  constituting  a  defense  to  the 


and  the  Manual  for  Courts-Martial  29 

charge,  the  court  will  call  upon  the  judge-advocate  to 
introduce  such  evidence. 

118.  Nolle  Prosequi. — The  United  States,  through 
the  Secretary  of  War,  or  through  the  convening  au- 
thority, may  require  or  authorize  the  judge-advocate  to 
enter  a  nolle  prosequi  in  a  case  on  trial — that  is,  discon- 
tinue the  prosecution  as  to  any  particular  charge  or  speci- 
fication, or  to  all  of  them. 

THE  HEARING. 

The  Prosecution. 

1 1 9.  Introduction  of  Witnesses.  —  Note  :  When 
the  judge-advocate  himself  takes  the  witness-stand,  he  is 
sworn  by  the  president  of  the  court. 

120.  Objections  to  Competency. — Witnesses  are  not 
permitted  to  appear  in  court,  or  to  listen  to  testimony 
(save  in  case  of  an  expert),  until  they  have  testified. 
While  waiting  to  give  their  testimony,  witnesses  are 
separated,  if  need  be. 

120.  Methods  of  Examination. — The  first  question 
is  put  to  determine  the  identification  of  the  accused;  the 
second,  to  show  that  the  witness  was  so  placed  as  to  per- 
sonally know  the  facts;  and  the  other  interrogatories,  to 
elicit  all  the  facts. 

After  cross-examination,  the  witness  may  be  re- 
examined by  the  judge-advocate,  after  which  he  may  be 
re-examined  by  the  accused. 

121.  Leading  Questions. — In  the  examination  in 
chief,  leading  questions — that  is,  questions  which  suggest 
answers  which  it  is  desired  to  have  the  witness  make,  or 


30  Digest  of  Davis'  Military  Law  of  the  U.  S. 

which,  embodying  a  material  fact,  may  be  answered  by 
^^  Yes''  or  ''No" — if  objected  to  by  the  opposite  party,  are 
rejected  by  the  court.  However,  they  may  be  permitted 
during  cross  and  direct  examinations  in  respect  to  matters 
introductory  to  the  material  part  of  the  inquiry,  or  when 
the  witness  appears  to  be  hostile  to  the  party  calling  him, 
or  makes  an  omission  in  his  testimony  through  want  of 
recollection  which  a  suggestion  may  assist. 

122.  Objections  to  Testimony. — A  question  may  be 
objected  to  upon  the  ground  that  it  is  leading,  irrelevant, 
or  that  the  answer  called  for  is  hearsay  or  in  the  nature 
of  an  opinion. 

122.  Questions  by  the  Court,  as  a  whole,  are  not 
subject  to  objection.  Questions  by  a  member  may  be 
objected  to. 

123.  Conduct  of  Prosecution. — The  judge-advocate 
should  advise  the  accused,  when  ignorant  and  unassisted 
by  counsel,  of  his  rights  in  defense. 

THE  DEFENSE. 

Defenses. 

1 24.  Nature  and  Character. — The  matter  offered  by 
an  accused  in  opposition  to  or  in  rebuttal  of  the  case  es- 
tablished by  the  prosecution  is  called  the  '' defense.^ ^  De- 
fense is  complete  where  the  testimony  submitted  in  behalf 
of  the  accused  is  sufficiently  strong  to  negative  the  allega- 
tions of  the  charges  (not  always  necessary). 

The  accused  is  entitled  to  acquittal  where  the  prose- 
cution is  unable  to  establish  guilt  beyond  a  reasonable 
doubt. 


I 


and  the  Manual  for  Courts-Martial  31 

124.  Want  of  Criminal  Capacity  to  commit  crime 
may  be  due  to  any  of  the  following  causes : 

(a)  Infancy. — Children  under  seven  years  of 
age. 

ih)  Idiocy. — An  idiot  is  a  person  mentally  de- 
fective; idiocy  is  regarded  in  law  as  an 
absence  of  mind.  A  person  born  deaf, 
dumb,  and  blind  is  regarded  as  in  the 
same  state  as  an  idiot. 

(c)     Insanity  or  Lunacy.  ^-  Impairment  of  the 
mental  faculties — casual  and  occasional, " 
rather  than  permanent,  with  periods  of 
mental    soundness,    called    '^  lucid   inter- 
vals.'' 

1 25.  Test  of  Capacity  in  Case  of  Insanity.  —  If  the 
accused  had  the  power  to  distinguish  right  from  wrong, 
and  the  power  to  adhere  to  the  right  and  avoid  the  wrong, 
he  is  responsible  for  the  consequences  of  his  act. 

126.  Drunkenness. — Where  it  is  shown  that  the 
accused  became  drunk  in  the  company  of  a  military  su- 
perior, who  drank  with  him  or  exerted  no  authority  to 
prevent  his  indulging  to  excess,  this  fact  should  operate 
to  mitigate  the  sentence. 

128.  Ignorance  or  Mistake  of  Fact  is  voluntary, 
and  not  susceptible  of  being  pleaded  as  a  defense  for  crime 
when  one  by  reasonable  exertion  might  have  acquired 
knowledge  ot  his  act. 

Involuntary  ignorance  occurs  where  a  man  intending 
to  do  a  lawful  act  does  that  which  is  unlawful.  When 
admitted,  it  is  held  to  affect  the  intent,  and  the  burden 
rests  upon  the  accused  of  showing  want  of  knowledge. 


32  Digest  of  Davis*  Military  Law  of  the  U.  S. 

129.  The  Alibi  is  a  term  employed  to  describe  that 
method  of  defense  to  a  criminal  prosecution  in  which  the 
accused  undertakes  to  show  that  he  could  not  have  com- 
mitted the  offense,  by  evidence  showing  that  he  was  in 
another  place  at  the  time  of  its  commission. 

130.  Testimony  as    to  Character   may  be    intro- 

duced— 

(a)  In  disproof  of  the  particular  offense  with 

which  the  accused  is  charged; 

(b)  With  a.  view  to  affect  the  punishment,  as 

to  kind  or  amount. 
The  prosecution  cannot  attack  the  character  of  the 
accused  till  the  latter  has  introduced  evidence  to  sustain 
it  and  has  thus  pat  it  in  issue. 

131.  Member  or  Judge-Advocate  as  Witness. — The 
accuser  or  a  witness  for  the  prosecution  is  ineligible  to  sit 
as  a  member  of  the  court.  If  that  fact  is  not  disclosed 
until  the  trial  has  been  entered  upon,  it  is  sufficient  ground 
of  challenge,  and  the  member  should  be  excused  when 
objected  to. 

A  member  may  testify  as  a  witness  for  the  defense. 

132.  Accused  as  a  Witness. — A  sworn  statement  by 
the  accused  should  not  be  admitted  tn  evidence  by  the 
court. 

132.  Statements  and  Arguments. — An  accused  per- 
son may  be  permitted  to  reflect  in  his  statement,  with- 
in reasonable  limits,  upon  the  apparent  animus  of  his 
accuser. 

Interlocutory  questions  are  objections  to  witnesses 
on  the  ground  of  competence;  to  the  admission,  exclusion, 
or  relevancy  of  testimony,  etc. 


and  the  Manual  for  Courts-Martial  33 

135.  Adjournments. — A  court-martial  is  authorized 
to  adjourn  to  the  quarters,  at  the  same  post,  of  a  sick 
witness,  and  there  take  his  testimony. 

139.  Contempt  of  Court  is: 

(a)  Direct  or  criminal  contempt;  the  act  oi 
omission  constituting  the  offense  must 
have  taken  place  in  the  actual  presence 
of  the  court  itself;  or, 

(6)  Constructive  contempt,  which  applies  to 
similar  conduct  committed  outside  the 
presence  of  the  court. 

140.  Procedure. — When  contempt  has  been  com- 
mitted, the  offending  party  is  given  an  opportunity  to  be 
heard  in  explanation.  If  not  satisfactory,  the  action 
taken  is  summary,  a  formal  trial  not  being  required;  the 
punishment  imposed- b}^  the  court  being  carried  into  effect 
by  the  commanding  officer  of  the  post. 

140.  The  Finding. — In  arriving  at  a  finding,  it  be- 
comes necessary  for  members  of  a  court-martial  to  ascer- 
tain, first,  what  is  alleged  against  the  accused,  and,  second, 
whether  the  allegations  contained  in  the  charges  have 
been  proved  beyond  a  reasonable  doubt. 

141.  Reasonable  Doubt  is  an  honest,  substantial 
misgiving,  generated  by  the  insufficiency  of  the  proof;  it 
is  a  doubt  which  reasonably  flows  from  the  evidence  or 
want  of  evidence. 

141.  Voting. — Where,  upon  the  finding,  the  vote  on 
a  charge  or  specification  is  tied,  the  accused  is,  in  law, 
found  not  guilty  thereon. 

142.  Basis  of  Finding. — No  matter  how  many  speci- 
fications there  may  be,  it  requires  a  finding  of  ^^guilty^'  or 


34  Digest  of  Davis'  Military  Law  of  the  U.  5. 

''not  guilty^'  on  but  one  specification  to  support  a  similar 
finding  upon  the  charge. 

144.  Finding  as  to  Lesser  Kindred  or  Included 
Offense. — There  may  be  a  finding  of  '^not  guilty''  as  to  the 
major  or  principal  offense  charged,  and  a  finding  of  a 
lesser  kindred  and  included  offense.  The  most  familiar 
instance  is  the  finding  of  ''  guilty  of  absence  without  leave ' ' 
under  a  charge  of  desertion. 

The  converse  of  the  proposition  is  not  true,  and  a 
conviction  of  a  graver  offense  in  lieu  of  that  charged  is 
not  sanctioned. 

THE  SENTENCE. 
148.    Mandatory  and  Discretionary  Sentences. 

(a)     A  mandatory    sentence    is  one   determined 
in  kind  and  amount  by  the  express  terms 
of  a  statute,  and  no  other  sentence  may 
lawfully  be  imposed. 
(h)    A  discretionary  sentence  is  one  in  which  an 
appropriate  punishment  is  determined  by 
the  court. 
156.    Recommendations  to  Clemency  are  not  part 
of  the  official  record  of  trial  and  should  not  be  incorporated 
with  the  record  proper,  but  should  be  appended  to  or 
transmitted  with  the  same  as  a  separate  and  independ- 
ent paper. 

PROCEEDINGS  IN  REVISION. 

158.  Revision  of  Findings  and  Sentence. — Findings 
and  sentence  are  subject  to  revision  and  amendment  so 
long  as  they  continue  in  legal  custody  of  the  court. 


and  the  Manual  fo/  Courts-Martial  ^  35 

159.  Procedure  in  Revision. — When  the  record  has 
been  returned  by  the  reviewing  authority  for  correction, 
at  least  five  members  of  the  court  who  acted  upon  the 
trial  and  the  judge-advocate  must  be  present.  It  is  not 
necessary  that  the  accused  be  present. 

160.  Publication  and  Execution.  —  The  word 
^ '  month '^  employed  in  a  sentence  is  to  be  construed  as 
meaning  calendar  month. 

161.  Cumulative  Sentences. — A  second  sentence  is 
to  be  regarded  as  cumulative  upon  the  first  and  its  execu- 
tion commences  when  the  first  is  completed. 

1 62.  Adding  to  Punishment. — No  military  authority 
can  add  to  a  punishment  as  imposed  by  a  court-martial. 

A  legal  sentence  of  a  court-martial,  when  once  duly 
approved  and  executed,  cannot  be  reached  by  a  pardon, 
nor  revoked,  recalled,  modified,  or  replaced  by  a  milder 
punishment  or  other  proceeding,  either  by  the  Executive 
or  by  Congress. 


36  Digest  of  Davis'  Military  Law  of  the  U.  S. 


CHAPTER  IX. 


Punishments. 

163.  Prohibited  Punishments.  —  Military  duty  is 
honorable,  and  to  impose  it  in  any  form  as  a  punishment 
must  tend  to  degrade  it  to  the  prejudice  of  the  best  inter- 
ests of  the  service.  A  sentence  cannot  impose  ^' guard 
duty'^  or  '^ extra  duty.^' 

PUNISHMENTS. 

165.  Death  sentence  requires  a  two-thirds  vote. 

166.  PubUcation. — When  an  officer  has  been  dis- 
missed for  cowardice  or  fraud  and  the  sentence  has  been 
published,  it  shall  be  scandalous  for  an  officer  to  associ- 
ate with  him. 

Note:  A  sentence  ^Ho  be  cashiered'^  is  now  equiva- 
lent to  a  sentence  of  dismissal. 

167.  Disqualification  for  Office  is  no  longer  regard- 
ed as  an  appropriate  penalty  in  cases  of  commissioned 
officers. 

167.  Imprisonment. — An  officer  or  soldier  may  be 
sentenced  to  a  term  of  confinement  merely,  without  the 
addition  of  '4iard  labor. ^'  Omission  of  the  words  ''hard 
labor '^  in  the  sentence  of  a  court-martial  shall  not  be  con- 
strued as  depriving  the  authority  executing  such  sentence 
of  the  power  to  require  hard  labor  in  any  case  where  it 
is  authorized. 


and  the  Manual  for  Courts-Martial  37 

Confinement  shall  be*  considered  as  commencing  at 
the  date  of  the  promulgation  of  the  sentence  in  orders . 

170.  Confinement  to  Limits  is  recognized  by  cus- 
tom as  an  appropriate  punishment  for  commissioned 
officers. 

171.  Suspension  from  Rank  includes  suspension 
from  command.  It  does  not  involve  a  loss  of  pay  for 
the  period  of  suspension,  but  it  deprives  the  officer  of  the 
right  to  promotion  for  the  period  of  suspension  and  of 
the  right  to  select  quarters. 

173.  When  Suspension  Is  Operative. — Suspension, 
like  dismissal,  takes  effect  upon  notice  to  the  officer  of 
approval  of  the  sentence  officially  communicated  to  him. 

175.  Fines. — A  fine  is  a  pecuniary  penalty  imposed 
by  a  court-martial,  requiring  payment  of  a  specific  sum 
to  the  United  States,  and  bears  no  relation  to  the  pay  of 
the  offender. 

1 77.  Forfeitures  are  pecuniary  penalties  which  be- 
come operative — 

(a)     By  operation  of  law,  upon   conviction  of 

certain  military  offenses;  or, 
(6)     In  conformity  to  and  in  execution  of  the 
sentence  of  a  lawfully  constituted  mili- 
tary tribunal. 
A  forfeiture  operates  to  retain  from  the  offender  the 
whole  or  a  part  of  his  current  pay  or  allowances  during 
a  period  of  time  expressly  set  forth  in  the  sentence. 

A  sentence  of  forfeiture  of  ^'all  pay  and  allowances'' 
includes  ''extra  duty  pay." 

178.  Stoppages  are  administrative  deductions  of 
pay,  made  in  pursuance  of  authority  conferred  by  statute 


38  Digest  of  Davis'  Military  Law  of  the  U.  S. 

or  regulation,  with  a  view  to  reimburse  the  United  States 
for  stores  or  property  purchased  or  used,  lost  or  destroyed. 

Fines,  forfeitures,  and  stoppages  are  not  synonymous. 

179.  How  Stoppages  Are  Made. — Stoppages  are 
usually  entered  upon  the  muster-  and  pay-rolls.  If  the 
rolls  be  signed  without  protest,  such  signing  will  operate 
as  an  implied  waiver  of  objection  to  the  justice  or  cor- 
rectness of  the  charge. 

ENLISTED  MEN. 

183.  Dishonorable  Discharge  terminates  the  serv- 
ice of  a  soldier,  and  his  discharge  should  be  dated  as  of 
the  day  on  which  approval  of  the  sentence  is  officially 
published,  or  the  order  promulgating  such  approval  is 
received,  at  the  post  where  the  soldier  is  held. 

185.  Imprisonment;  Confinement.  —  Such  punish- 
ments may  be  executed — 

(a)  In   a   State  prison   or  penitentiary,  when 

the  offense  of  which  convicted  would,  by 
some  statute  or  by  the  common  law,  sub- 
ject such  convict  to  such  conviction  and 
punishment;  or, 

(b)  In  the  United  States  Disciplinary  Barracks, 

or  at  a  military  post,  as  a  ^'general  pris- 
oner'';  and, 

(c)  By  simple  confinement,  as  a  ^^  garrison  pris- 

oner, ^^  in  the  guard-house. 

187.  Confinement  with  Ball  and  Chain. — The  sen- 
tence should  set  forth  the  weight  of  the  ball,  the  length  of 
the  chain,  etc. 

187.     Solitary   Confinement  shall  not  exceed  four- 


and  the  Manual  for  Courts-Martial  39 

teen  days  at  one  time  nor  be  repeated  until  fourteen  days 
have  elapsed,  and  shall  not  exceed  eighty-four  days  in 
one  year. 

1 88.  Execution  of  Sentence. — The  confinement  shall 
be  considered  as  commencing  at  the  date  of  the  promul- 
gation of  the  sentence  in  orders. 

A  sentence  of  confinement  is  executed  by  sending  the 
party  under  proper  guard  to  the  place  of  confinement, 
duly  designated,  and  at  the  same  time  transmitting  to  the 
officer  in  command  a  copy  of  the  order  publishing  the 
sentence,  together  with  such  other  papers  as  are  required. 


40  Digest  of  Davis'  Military  Law  of  the  U.  S. 


CHAPTER  X. 


The  Record. 

192.  Separate  Record  of  Each  Case  Tried.  —  The 

record  of  each  case  should  be  complete  in  itself  and  sep- 
arate and  distinct  from  every  other  record. 

193.  Organization  of  the  Court. — First  essential, 
that  there  assembled  at  the  time  and  place  indicated  in 
the  order  at  least  five  of  the  officers  detailed  as  mem- 
bers; second  essential,  that  the  convening  order  was  read 
to  the  accused  and  that  the  privilege  of  challenge  was 
extended  to  him. 

197.  Copies  of  Records  to  Accused  Persons. — The 
judge-advocate  mails  a  carbon  copy  to  the  Judge-Advo- 
cate General  of  the  Army,  and  the  latter  furnishes  the 
same  to  the  accused  upon  application  properly  made. 
The  statute  confers  the  right  in  case  of  general  court- 
martial  only. 


and  the  Manual  for  Courts-Martial  41 


CHAPTER  XL 


The  Reviewing  Authority. 

200.  Approval  by  President. — In  ca^^es  of  sentences 
of  death,  dismissal,  together  with  sentences  respecting 
^^ general  officers/'  the  President  is  the  final  reviewing 
officer. 

202.  Power  of  Reviewing  Authority — He  cannot 
correct  the  record  of  the  court  by  striking  out  any  part  of 
the  finding  or  sentence,  nor  can  he  change  the  order  in 
which  the  different  penalties  are  adjudged  by  the  court, 
nor  can  he  add  to  the  punishment  imposed  by  the  court. 

A  military  commander  cannot  delegate  to  an  inferior 
or  other  officer  his  functions  as  reviewing  authority  of  the 
proceedings  or  sentences  of  courts-martial. 

THE  PARDONING  POWER. 

Remission,  Mitigation,  and  Commutation. 

204.  The  Pardoning  Power. — The  power  to  pardon 
offenses  against  the  United  States  is  vested  by  the  Con- 
stitution in  the  President. 

A  qualified  forfn  of  the  pardoning  power,  extending 
to  remission  or  mitigation  of  sentences,  is  conferred  by 
statute  upon  certain  military  commanders,  who  are  au- 
thorized by  law  to  carry  into  effect  sentences  of  courts- 
martial. 


42  Digest  of  Davis'  Military  Law  of  the  U.  S. 

205.  Effects  of  Pardons.— It  is  the  effect  of  a  full 
pardon  to  remove  all  penal  consequences,  except,  of  course, 
executed  penalties  and  all  disabilities  attached  to  the 
offense  or  to  the  conviction  or  sentence. 

206.  Continuing  Punishments.  —  The  pardoning 
power  extends  to  continuing  punishments  or  punishments 
which  are  never  fully  executed,  remitting  in  each  case  the 
punishment  from  and  after  the  taking  effect  of  the  pardon. 

Examples  of  continuing  punishments : 

(a)     The  punishment  of  disqualification  to  hold 

military  or  public  office. 
(h)     Reduction  in  '^ files'^  in  the  list  of  officers  or 

the  offender's  grade. 

206.  Conditional  Pardons. — Are  granted  upon  a 
condition  precedent  or  subsequent,  as  the  President's 
proclamation  of  March  11,  1865,  granting  pardon  to  all 
deserters  on  certain  conditions. 

207.  Constructive  Pardons. — The  promotion  of  an 
officer  while  under  arrest  on  charges  has  been  viewed  as  a 
constructive  pardon  of  the  offense  on  account  of  which  he 
has  been  arrested. 

207.  Pardon  Not  Retroactive. — It  cannot  remit  an 
executed  punishment  or  restore  an  executed  forfeiture 
resulting  either  by  operation  of  law  or  sentence. 

208.  Remission  is  a  partial  exercise  of  the  pardon- 
ing power,  relieving  the  person  from  a  punishment  or  the 
unexecuted  portion  of  a  punishment,  but  not  pardoning 
the  offense  as  such. 

209.  Mitigation  is  a  form  of  pardoning  power  vest- 
ed in  the  reviewing  authority,  which  authorizes  him,  if 
he  deems  a  punishment  too  severe,  to  reduce  it  in  quan- 


and  the  Manual  for  Coutts-Martial  43 

tity  or  quality  without  changing  its  species.  Imprison- 
ment, fine,  forfeiture,  and  suspension  may  be  mitigated. 
210.  Commutation  is  a  form  of  conditional  pardon, 
vested  in  the  President  alone  and  not  shared  with  the 
reviewing  authorities.  Where  sentence  imposes  death, 
dismissal,  or  dishonorable  discharge,  clemency  can  only 
be  exercised  by  way  of  commutation. 


44  Digest  of  Davis'  Military  Law  of  the  U.  S. 


CHAPTER  XIII. 


Courts  op  Inquiry. 

218.  Object  and  Purpose. — A  court  of  inquiry  is  an 
agency  created  by  statute  for  the  purpose  of  investigating 
questions  of  fact  and  of  giving  its  opinion  upon  the  merits 
of  the  case.  It  is  not  a  court  in  the  strict  sense  of  that 
term;  it  cannot  compel  the  attendance  of  witnesses  nor 
require  them  to  testify. 

218.  Constitution  and  Composition. — A  court  of  in- 
quiry is  rarely  convened  by  any  less  authority  than  that 
competent  to  convene  a  general  court-martial ;  it  can  only 
be  convened  upon  application  of  the  officer  or  soldier 
whose  conduct  is  to  be  investigated.  It  is  composed  of 
one  to  three"^members. 

219.  Challenges.  —  The  right  of  challenge  is  ac- 
corded. Members  of  courts  of  inquiry  are  sworn,  and  the 
procedure  is  similar  to  that  of  courts-martial. 

220.  The  Record  consists  of  two  parts: 

(a)  The  testimony  of  witnesses,  including  docu- 

mentary evidence,  arguments,  and  state- 
ments. 

(b)  The  report  proper,  consisting  of  a  statement 

of  the  facts  in  the  form  of  a  narrative. 

221.  Use  of  Record  in  a  Subsequent  Trial  is  au- 
thorized as  evidence  in  cases  not  capital  nor  extending  to 
dismissal  of  an  officer,  provided  that  the  circumstances 
are  such  that  oral  testimony  cannot  be  obtained. 


and  the  Manual  for  Courts-Martial  45 


CHAPTER  XIV. 


Military  Boards. 

225.  Boards;  Constitution,  Powers,  Etc. — A  board 
is  a  committee  of  commissioned  officers  called  together 
with  a  view  to  conducting  an  examination  and,  if  called 
upon,  to  submit  recommendations.  Unless  specially  au- 
thorized, it  cannot  summon  witnesses,  nor  can  it  swear 
witnesses  or  its  own  members.  It  may  act  upon  evidence 
submitted  in  the  form  of  affidavits.  Affidavits,  being 
ex  parte  in  character,  cannot  be  properly  offered  as  evi- 
dence in  a  trial  by  court-martial. 

*  226.  Rules  of  Procedure;  Reports. — Are  similar  to 
that  of  courts-martial,  except  proceedings  are  usually 
signed  by  all  the  members. 

RETIRING  BOARDS. 

237.  Procedure. — Its  duty  is  to  inquire  into  facts 
as  to  disability  of  any  officer  who  appears  to  be  incapable 
of  performing  his  duties;  to  determine — 

{a)     The  extent  of  the  disability; 
(6)     Whether  such  disability  is  or  is  not  incident 
to  the  service. 
The  procedure  is  the  same  as  that  of  other  military 
tribunals. 

238.  Record  is  signed  by  the  members  and  the  re- 
corder and  transmitted  to  the  Secretary  of  War  for  the 
action  of  the  President, 


46  Digest  of  Davis'  Military  Law  of  the  U.  S. 

238.  Approval  of  Finding. — Retired  officers  are,  in 
fact,  pensioners.  They  do  not  hold  public  office.  Any 
officer  '^wholly  retired '^  ceases  to  be  an  officer  of  the  Army , 

BOARDS  OF  SURVEY. 

239.  Jurisdiction. — A  surveying  officer  is  a  tribunal 
created  by  Army  Regulations  for  the  purpose  of  investi- 
gating questions  of  property  responsibility.  A  board  of 
survey  is  without  power  to  call  or  swear  witnesses,  but 
may  receive  and  file  evidence  in  the  form  of  affidavits. 

241.  No  Power  to  Condemn. — A  surveying  officer 
cannot  condemn  public  property;  his  action  is  purely 
advisory. 

242.  Boards  of  Survey  in  Cases  of  Desertion  are 
called — 

(a)  To  determine  whether  Government  prop- 
erty has  been  lost,  and  to  fix  the  exact 
accountability  of  the  soldier; 

(6)     To  ascertain  the  cause  of  desertion. 

243.  Boards  to  Determine  the  Character  Given  to 
Discharged  Enlisted  Men  may  be  convened  by  a  com- 
manding officer  to  determine  whether  a  soldier's  re- 
enlistment  should  or  should  not  be  recommended  and  the 
kind  of  discharge  to  be  given  him.  Notification  tO  soldier 
should  be  made  at  least  thirty  days  prior  to  discharge. 


and  the  Manual  for  Courts-Martial  47 


CHAPTER  XV. 


Evidence. 


244.  Evidence  is  a  term  which  includes  all  mat- 
ters of  fact  which  a  court  of  justice  permits  to  be  sub- 
mitted in  the  trial  of  a  case,  with  a  view  to  prove  or  dis- 
prove the  existence  of  a  fact  in  issue. 

245.  How  Obtained. — Evidence  is  obtained  by  ap- 
plication of  a  system  of  rules,  called  '^ rules  of  evidence. '^ 

245.  Witnesses  are  persons  who  relate  in  court, 
under  oath,  such  facts  pertaining  to  a  particular  case  as 
they  have  become  cognizant  of  through  the  medium  of 
their  senses. 

245.     Purpose  of  Rules  of  Evidence  is  to  determine 
(a)     Thecompetency  of  witnesses; 
(h)     The  credibility  of  witnesses. 

WITNESSES. 
245.     Duty  of  Witness  to  Testify;  Appearance.  ^ — 

Every  person  upon  whom  a  subpoena  has  been  duly  served 
must  appear  and  testify  or  render  himself  liable  to  pun- 
ishment for  contempt. 

245.  Appearance  of  Military  Persons. — The  attend- 
ance of  military  persons  is  secured  by  the  issuance  of 
orders  from  the  proper  military  authority.  Failure  to 
obey  such  summons,  if  not  explained,  constitutes  the 
offense  of  disobedience  of  orders. 


48  Digest  of  Davis'  Military  Law  of  the  U.  S. 

245.  Appearance  of  Civilians. — To  obtain  the  at- 
tendance of  a  civilian  as  a  witness,  a  formal  subpoena  is 
issued  by  the  judge-advocate.  If  the  witness  has  in  his 
possession  a  document  which  is  material  as  evidence,  a 
writ  called  a  subpcena  duces  tecum  issues,  commanding 
him  to  produce  the  document  described  in  court  on  a 
certain  day. 

246.  Service  of  Process. — A  summons  may  legally 
be  served  either  by  a  military  or  a  civil  person,  but  will 
perferably  be  served  by  an  officer  or  non-commissioned 
officer  of  the  Army. 

246.  Method  of  Service. — To  constitute  service, 
the  original  is  shown  to  the  witness,  or,  if  two  copies  are 
furnished,  the  duplicate  is  delivered  to  him;  a  certificate 
of  service  is  then  indorsed  upon  the  original  writ,  which 
is  returned  to  the  judge-advocate. 

247.  Operation  of  the  Writ. — The  power  to  issue 
writs  of  subpoena  is  vested  by  statute — not  in  the  court- 
martial  itself,  but  in  the  judge-advocate.  Such  writs 
are  operative  anywhere  within  the  territorial  jurisdiction 
of  the  United  States. 

247.  Time  of  Service. — The  service  of  a  subpoena 
upon  a  witness  ought  always  to  be  made  at  least  one  day 
before  the  trial. 

THE  WRIT  OF  ATTACHMENT. 

248.  Nature  and  Purpose. — The  writ  of  attachment 
is  a  compulsory  process  to  compel  the  attendance  of  a 
witness;  it  authorizes  the  officer  charged  with  its  execu- 
tion to  arrest  the  person  named  and  compel  his  appearance 
in  court,  using  .such  force  as  is  necessary. 


and  the  Manual  for  Courts-Martial  49 

248.     Application  in  Court-Martial  Procedure. — The 

power  to  issue  a  writ  of  attachment  is  vested  exclusively 
in  the  judge-advocate  and  cannot  be  exercised  by  the 
court. 

248.  Limitation  of  the  Power  to  Issue  Writs  of  At- 
tachment.— The  power  of  the  judge-advocate  to  issue 
writs  of  attachment  is  restricted  to  the  State,  Territory, 
or  District  in  which  the  court  is  sitting. 

249.  Service  of  Process  of  Attachment. — To  author- 
ize a  resort  to  an  attachment,  there  must  have  been  a 
formal  summons  duly  issued  and  served  upon  the  witness 
and  not  complied  with.  The  judge-advocate  is  author- 
ized only  to  initiate  the  process  of  attachment. 

Whenever  it  becomes  necessary  to  enforce  the  at- 
tendance of  a  witness,  the  judge-advocate  will  issue  a 
warrant  of  attachment,  directing  and  delivering  it  for 
execution  to  an  officer  designated  by  the  department 
commander.  When  necessary,  the  nearest  post  com- 
mander will  furnish  a  military  detail  sufficient  to  execute 
the  process. 

The  person  entrusted  with  the  service  of  a  writ  of  at- 
tachment should  be  provided  with  the  following  papers: 

(a)  The  order  convening  the  court; 

(b)  A  copy  of  the  charges; 

(c)  The  original  subpoena,  with  affidavits  and 

certificates  of  service; 

(d)  An  affidavit  from  the  judge-advocate  that 

the  party  has  failed  to  appear,  that  he  is 
a  necessary  witness,  and  that  no  valid 
excuse  has  been  fixed  for  such  failure  to 
appear. 


50  Digest  of  Davis'  Military  Law  of  the  U.  S. 

250.  The  Rules  of  Evidence  observed  in  civil  courts 
should  in  general  apply  in  trials  by  courts-martial. 

COMPETENCY  OF  WITNESSES;  CREDIBILITY. 

251 .  Competency  of  a  Witness  is  his  legal  capacity 
to  testify,  and  is  determined  by  enactments  of  Congress 
or  by  the  common  law. 

The  credibility  of  a  witness  is  his  worthiness  of  belief, 
and  is  determined  by  his  character,  by  the  acuteness  of 
his  powers  of  observation,  by  the  accuracy  and  retentive- 
ness  of  his  memory,  and  by  his  capacity  for  lucid  expres- 
sion. The  court  determines  questions  of  competency, 
and  if  decided  adversely,  the  witness  is  not  permitted 
to  testify. 

GROUNDS  OF  INCOMPETENCY. 

252.  Grounds   of   Incompetency  are: 

(a)  Infamy; 

(b)  Interest  in  the  subject  of  litigation; 

(c)  Want  of  understanding; 

(d)  Want  of  religious  belief. 

(a)  Infamy. 

252.  Nature  of  the  Disqualification. — The  crimes  in- 
volving infamy  are  treason,  felony,  and  the  crimen  falsi . 

252.  Treason  consists  in  adhering  to  the  enemies 
of  the  United  States,  in  giving  them  aid  or  comfort,  or 
in  levying  war  against  the  United  States.  A  person 
convicted  of  this  crime  forfeits  such  rights  as  attach  to 
citizenship. 

252.  Felony  was  the  peculiar  status  occupied  by  a 
person  who  had  been  convicted  of  certain  crimes  at  com- 
mon law — rather  a  consquence  of  crime  than  a  crime  it- 


and  the  Manual  for  Courts-Martial  51 

self.  Any  offense  which  at  common  law  was  punisha- 
ble capitally  or  with  forfeiture  of  land  and  goods  was  a 
felony,  and  a  person  convicted  thereof  became  infamous. 

253.  Practice  of  the  United  States  Courts. — There  is 
no  status  of  felony  under  the  laws  of  the  United  States 
unless  an  offense  has  been  declared  felonious  or  infamous 
by  statute,  or  unless  the  punishment  attached  thereto  is 
such  as  to  render  one  who  has  undergone  it  infamous. 

Imprisonment  in  the  State  prison  or  penitentiary  is 
considered  infamous  punishment. 

Note:  Desertion  (except  desertion  in  time  of  war 
and  repeated  desertion  in  time  of  peace),  is  not  a  felony 
and  does  not  rendera  witness  incompetent  before  a  court- 
martial;  but  conviction  of  desertion  may  impair  his  cred- 
ibility. 

253.  Crimen  Falsi  at  common  law  was  any  offense 
involving  falsehood  and  which  might  injuriously  affect 
the  administration  of  justice  by  the  introduction  of  false- 
hood or  fraud;  and  any  person  guilty  of  such  an  offense 
was  regarded  as  incompetent  to  testify.  Such  offenses 
include  forgery,  perjury,  subornation  of  perjury,  suppres- 
sion of  testimony  by  bribery,  etc. ;  each  of  which  involves 
the  repudiation  of  the  sanction  of  an  oath. 

254.  Procedure  in  Case  of  Incompetency  from  In- 
famy.— Incompetency  from  infamy  is  established  by  the 
production  or  proof  of  the  judgment  itself.  Incompe- 
tency based  upon  conviction  of  an  infamous  offense  does 
not  operate  to  produce  incompetency  beyond  the  juris- 
diction in  which  the  conviction  was  had.  Such  convic- 
tions may  be  established  in  evidence  with  a  view  to  affect 
credibility. 


52  Digest  of  Davis'  Military  Law  of  the  U.  S. 

(h)  Interest. 
254.    Reason  for  the  Disqualification.  —  It    was 

a  rule  of  the  common  law  that  in  a  civil  action  a  party 
who  was  interested  in  the  result  of  the  litigation  was  per- 
mitted to  testify  against  his  interest,  but  was  regarded  as 
incompetent  to  give  evidence  in  his  own  behalf.  It  was 
regarded  as  expedient  to  remove  from  the  path  of  a  witness 
every  temptation  to  commit  perjury. 

255.  Testimony  Against  Interest. — A  party  is  com- 
petent to  testify  voluntarily  against  himself  at  any  time 
and  in  any  case.  He  may  do  this  under  oath,  or  by  means 
of  confessions,  or  declarations  against  interest,  made  out 
of  court  in  a  matter  relating  to  the  offense  with  which  he 
is  charged. 

255.  The  Accused  in  a  Criminal  Case. — The  party 
actually  injured  by  the  commission  of  a  criminal  offense, 
who  is  known  as  the  prosecutor,  or  prosecuting  witness,  is 
always  a  competent  witness. 

255.  Competency  of  Accused  Restored  by  Statute. 
— If  he  declines  to  appear  as  a  witness,  his  failure  to 
appear  shall  create  no  presumption  against  him;  if  he 
avails  himself  of  the  privilege,  his  status  is  the  same  as 
that  of  any  other  witness. 

257.  Accomplices  and  Codefendants. — The  testi- 
mony of  accomplices,  codefendants,  and  the  like  is,  as  a 
rule,  excluded;  but  sometimes  it  is  necessary  to  obtain 
such  testimony  in  a  case  in  which  a  serious  offense  would 
otherwise  go  unpunished.  An  accomplice  or  codefendant 
is  incompetent:  first,  because  of  infamy;  second,  because 
of  interest.     The  first  accrues  upon  conviction;  the  second 


and  the  Manual  for  Courts-Martial  53 

when  an  indictment  has  been  obtained  or  prosecution 
begun. 

257.  Husband  and  Wife;  Exceptions. — Either  is  in- 
competent to  testify  for  or  against  the  other  in  any  ac- 
tion. An  exception  exists  in  the  case  of  a  crime  com- 
mitted by  a  husband  against  the  person  of  his  wife. 

(c)  Want  of  Understanding. 

258.  Want  of  Understanding  becomes  a  ground  of 
incompetency.  Under  this  head  fall  young  children,  the 
deaf  and  dumb,  idiots,  the  insane,  and  persons  under 
the  influence  of  drugs  or  liquors.     But  if  the  cause  be  tem- 

/  porary,  and  lucid  intervals  should  occur,  the  competency 
is  restored. 

259.  Insanity. — If  the  facts  were  observed  and  tes- 
timony given  during  lucid  intervals^  competency  will  be 
presumed. 

(d)  Want  of  Religious  Belief. 

259.  Want  of  Religious  Belief. — The  particular  form 
of  religious  belief  is  not  material,  so  long  as  it  contemplates 
the  existence  of  a  Supreme  Being  to  whom  the  witness 
acknowledges  a  moral  accountability. 

An  oath  may  be  defined  as  an  ^'outward  pledge  given 
by  the  person  taking  it  that  his  promise  is  made  under  an 
immediate  sense  of  his  responsibility  to  God.'' 

260.  Procedure  in  Cases  of  Incompetency.  —  The 
question  of  competency  should,  in  general,  be  raised  and 
decided  before  th6  witness  is  sworn,  but  may  come  up  at 
any  time  when  his  competency  becomes  apparent. 

Note:  The  president  or  any  member  of  a  court- 
martial,  as  also  the  judge-advocate,  may  legally  give  tes- 


54  Digest  of  Davis'  Military  Law  of  the  U.  S. 

timony  before  the  court,  and  the  fact  that  the  court  is 
composed  of  but  five  members  will  not  affect  the  valid- 
ity of  the  proceedings. 

260.  The  Voir  Dire. — When  interest  or  want  of  re- 
ligious belief  is  alleged  as  a  ground  of  incompetency,  the 
fact  may  be  established  by  the  testimony  of  witnesses,  or 
by  the  admission  of  the  proposed  witness,  or  by  his  own 
testimony  given  under  the  sanction  of  a  peculiar  form  of 
oath  known  as  the  voir  dire.  If  the  evidence  offered 
aliunde,  to  prove  interest,  is  rejected  as  inadmissible,  the 
witness  may  then  be  examined  on  the  voir  dire. 

OPINIONS;  EXPERT  TESTIMONY. 

261 .  Opinion;  Experts. — As  a  rule,  testimony  in  the 
nature  of  opinion  is  excluded,  but  there  are  two  excep- 
tions to  this  general  rule: 

{a)  Any  intelligent  witness  may  testify  as  to 
opinions  which  are  themselves  conclu- 
sions drawn  from  numerous  facts  within 
the  daily  observation  and  experience  of 
all  intelligent  persons. 

(6)  The  opinion  of  experts  in  an  art,  trade,  or 
profession  in  which  they  have  attained 
especial  proficiency. 

262.  Procedure. — The  party  who  introduces  expert 
witnesses  must  show  that  they  are  experts  in  fact. 

RULES  OF  EVIDENCE. 

262.  Purpose  of  Rules  of  Evidence. — They  have  to 
do  with  determining  the   competency  of  witnesses  and 


and  the  Manual  for  Courts-Martial  55 

the  exclusion  of  certain  testimony  upon  the  ground  that 
it  is  likely  to  mislead  or  to  confuse  the  main  issue. 

263.  Oral  and  Written  Testimony. — Oral  testimony 
is  that  given  viva  voce  in  open  court;  written  testimony 
is  composed  of  matter  in  the  nature  of  documents,  either 
originals  or  copies. 

263.  Direct  and  Indirect;  Real  Evidence. — Oral 
testimony,  as  to  its  nature  and  character,  is  classified  as : 

(a)  Direct  or  original  when  the  witness  testifies 

to  facts  observed  by  him  thiough  his 
senses. 

(b)  Indirect  when  the  witness  derives  his  knowl- 

edge from  the  observation  of  otheis  and 
testifies  to  their  statements  —  called 
hearsay  testimony. 
Real  evidence  consists  in  the  production  in  court  of 
objects  or  articles  that  pertain  to  the  case  in  hearing. 
Evidence  is  circumstantial  when  the  existence  of  a  fact  is 
inferred  from  the  existence  or  non-existence  of  other  facts 
established  in  evidence  by  the  testimony  of  witnesses . 
The  rules  of  evidence  also  serve  to  determine: 

(a)     The  relevancy  of  testimony — its  relation  to 

the  issues  raised  by  the  pleadings. 
(6)    The  burden  of  proof — the  obligation  of  es- 
tablishing the  truth  of  each  issue  raised 
during  the  trial. 

(c)  The  quality  of  evidence  which  requires  the 

best  evidence. 

(d)  The  amount  of  evidence  necessary  to  estab- 

lish the  facts. 


56  Digest  of  Davis'  Military  Law  of  the  U.  S. 

(a)  Relevancy  of  Evidence. 
264.     Relevancy  of  Evidence. — Evidence  must   be 
relevant — that  is,  must  bear  directly  upon  the  issue. 

264.  Relevancy  of  Facts. — A  fact  is  said  to  be  rele- 
vant when  it  is  the  cause  or  the  effect  of  another  fact. 
Testimony  objected  to  as  irrelevant  may  be  admitted 
upon  the  statement  of  the  person  producing  it  that  its 
relevancy  will  appear  aba  later  stage  of  the  proceedings. 

265.  Circumstantial  Evidence. — In  a  case  depend- 
ing upon  circumstantial  evidence,  the  court,  ia  order  to 
convict,  must  find  the  circumstances  to  be  satisfactorily 
proved  as  facts,  and  must  also  find  that  those  facts  clearly 
imply  the  guilt  of  the  accused  and  cannot  reasonably  be 
reconciled  by  any  hypotheses  of  innocence. 

265.  Character;  Reputation. — Character  of  a  per- 
son cannot  be  established  by  testimony  of  witnesses. 
Reputation,  which  is  the  outward  manifestation  of  char- 
acter, is  susceptible  of  observation  by  neighbors  and 
others  who  may  testify  to  such  reputation  in  a  proper 
case. 

Evidence  of  good  character,  record,  and  services  of 
the  accused  is  admissible  in  all  military  cases.  The 
prosecution  cannot  attack  the  character  of  the  Recused 
until  the  latter  has  introduced  evidence  to  sustain  it. 

266.  Reputation,   How  Established. — Persons  who 
.  know  the  reputation  of  the  accused  in  the  community  in 

which  he  lives  can  testify  as  to  the  reputation  which  he 
there  enjoys  for  sobriety,  integrity,  morality,  etc. 

(b)  Tta  Burden  of  Proof. 
266.     How  Determined. — The  burden  of  proof — that 


and  the  Manual  for  Courts-Martial  57 

is,  the  task  of  establishing  the  truth  of  a  proposition  out- 
lined in  the  pleadings — rests  upon  the  one  who  alleges 
a  fact. 

267.  Burden  of  Proof  in  a  Criminal  Trial  rests  up- 
on the  prosecution  of  establishing  in  evidence  the  facts 
of  the  offense  as  set  forth  in  the  indictment.  In  collateral 
issues  as  to  the  competency  of  witnesses,  the  admissibility 
of  testimony,  etc.,  the  burden  of  proof  rests  upon  the 
party  making  the  allegations. 

(c)  The  Best  Evidence. 

267.  The  Best  Attainable  Evidence  Must  Be  Sub- 
mitted.— If  a  witness  testify  as  to  facts  which  he  has  heard 
or  seen,  or  if  the  original  of  a  document  be  produced,  such 
testimony  is  the  best  attainable,  and  is  said  to  constitute 
primary  evidence.  If,  on  the  other  hand,  the  witness 
testifies  to  facts  the  knowledge  of  which  he  has  gained 
from  another,  or  if  a  copy  of  a  document  be  submitted, 
such  evidence  is  not  the  best,  and  is  said  to  be  ^^ sec- 
ondary'^ or  '^derivative.'' 

268.  Hearsay  testimony  is  that  obtained  from  a 
witness  who  has  not  himself  observed  the  facts  to  which 
he  testifies,  and  is  objectionable  for  several  reasons: 

1.  Because  it  is  secondary. 

2.  The  real  witness  is  not  testifying  in  court 

under  oath. 

3.  The  opposite  party  has  no  opportunity  to 

be  confronted  with  the  witnesses  against 
him  or  to  exercise  the  right  of  cross-exam- 
ination. 
The  Principal  Exceptions  Are : 
268.  (1)     Confessions   may  be  made  by  a  plea  of 


58  Digest  of  Davis'  Military  Law  of  the  U.  S. 

''guilty/'  or  by  a  statement  made  in  open  court  by  or 
in  behalf  of  the  accused;  if  made  elsewhere,  they  may 
be  testified  to  by  those  who  heard  them,  if  made  under 
such  circumstances  as  to  make  it  clear  that  the  admis- 
sions of  guilt  were  entirely  voluntary. 

Corroboration.  —  A  mere  confession,  not  made  in 
open  court,  or  otherwise  corroborated,  will  not  justify 
conviction. 

Proof  of  Facts  obtained  through  an  inadmissible  con- 
fession is  both  competent  and  receivable. 

269.  (2)  Declarations;  Admissions  Against  Inter- 
est.— Acts,  declarations,  and  conduct  of  the  accused  on 
the  occasion  of  the  commission  of  an  offense  are  to  be 
considered  as  indicia  of  his  guilt  or  innocence. 

Dying  Declaration  is  an  ante-mortem  statement  made 
by  the  declarant  in  relation  to  the  injury  from  which  he  is 
suffering.  The  sense  of  impending  death  is  held  to  re- 
place the  sanction  of  an  oath,  but  the  statement  will  not 
be  received  if  it  appears  that  the  declarant  cherishes  any 
hope  of  ultimate  restoration  to  health. 

RES  GESTiE. 

270.  Res  Gestae  is  a  form  of  testimony  which  con- 
sists of  the  admissions,  statements,  and  other  utter- 
ances of  accused  persons  or  interested  parties  which  are 
testified  to  by  those  who  heard  them. 

271 .  Rule  as  to  Admission. — The  rule  governing  the 
admission  of  such  statements  is  that  they  are  receivable 
when  they  are  strictly  contemporaneous  with  and  form 
an  essential  part  of  the  event  to  which  they  relate,  and 
not  otherwise. 


and  the  Manual  for  Courts-Martial  59 

Example:  If  B  stabs  C  and  as  he  inflicts  the  wound 
exclaims,  '^Take  that!''  or  words  of  similar  effect,  such 
exclamation  is  an  essential  ingredient  of  the  offense. 

SUBSTANCE  OF  THE  ISSUES;  DEPARTURES. 

271.  The  Substance  of  the  Issue  Only  Need  Be 
Proven. — In  the  application  of  this  rule  a  distinction  is 
made  between  matter  of  substance,  which  pertains  to  an 
issue,  and  matter  of  description.  The  latter  must  be 
proved  as  alleged;  the  former,  as  to  its  legal  or  material 
part  only. 

272.  Judicial  Notice. — There  are  certain  facts  of 
which  all  courts  take  what  is  called  judicial  notice — 
that  is,  accept  them  without  proof,  as  they  are  alleged  or 
referred  to  in  pleading  or  argument  during  the  progress 
of  a  trial. 

272.  The  Revised  Statutes;  Supplements.  —  The 
law  of  the  United  States,  which  is  applied  by  courts- 
martial  in  military  trials,  is  contained  in  the  Revised 
Statutes  and  the  authorized  Supplements  thereto,  and  in 
the  biennial  volumes  of  Statutes  at  Large. 

273.  The  Statutes  at  Large  consist  of  twelve  vol- 
umes containing  the  public  and  private  statutes  enacted 
since  December  1,  18'^3,  together  with  all  tieaties  and  con- 
ventions with  foreign  powers. 

PUBLIC  DOCUMENTS. 
275.     Public  Documents. — For  evidential  purposes, 
a  public  document  may  be  defined  as  any  written  instru- 
ment emanating  from  or  filed  or  recorded  in  any  office  or 
department  of  the  Government. 


60  Digest  of  Davis'  Military  Law  of  the  U.  S. 

275.  Production  of,  in  Evidence;  How  Secured. — 

When  it  becomes  necessary  to  produce  a  public  document 
in  court,  secondary  evidence  of  its  contents  in  the  form 
of  copies  is  usually  furnished,  and  authenticated  by  the 
seal  of  the  office. 

DOCUMENTARY  EVIDENCE. 

276.  Documents.  —  A  document  is  a  statement  of 
fact  in  a  written  instrument,  or  anything  upon  which 
inscriptions,  characters,  or  signs  have  been  recorded  and 
which  is  susceptible  of  use  as  evidence.  Written  instru- 
ments [are  classified,  according  to  their  source  and  au- 
thority, into  public  and  private  documents,  and,  according 
to  the  formality  attending  their  execution,  into  special- 
ties y  or  instruments,  under  seal,  and  writings  or  docu- 
ments not  under  seal,  a  term  which  includes  all  other 
writings. 

A  written  instrument  is  regarded  as  of  the  highest 
authoity  upon  the  subject  to  which  it  relates;  and,  as  a 
rule,  cannot  be  varied  or  contradicted  by  parol  testimony. 

276.  Primary  and  Secondary  Evidence. — Written 
evidence  is  derived  from  documents,  and  is  said  to  be 
either  primary  or  secondary  in  character,  depending  upon 
its  originality.  The  former  consists  in  the  production  ot 
the  document  itself;  the  latter  consists  of  copies  of  the 
original,  or  in  parol  testimony  as  to  its  contents,  derived 
from  witnesses  fafniliar  therewith. 

The  production  of  written  evidence  is  voluntary, 
when  done  by  a  party  in  his  own  interest,  or  compulsory, 
when  required  by  the  court. 


and  the  Manual  for  Courts-Martial  61 

277.  Copies  of  Public  Documents. — The  principal 
forms  are :  ' 

1.  Exemplifications — that  is,  transcripts  of  rec- 

ords or  judgments  under  the  great  seal 
of  the  State  or  the  seal  of  the  court. 
These  have  the  same  evidential  value  as 
would  the  production  of  the  original  itself. 

2.  Certified  or  office  copies,  made  by  an  officer 

specially  authorized  by  statute  to  perform 
that  duty. 

3.  Sworn  copies ,  transcripts  of  public  records 

made  under  oath.  Examined  copies  are 
those  which  have  been  compared  with  the 
original. 

PRIVATE  DOCUMENTS. 

283.  How  Produced;  How  Proved. — Private  docu- 
ments differ  from  public  documents  chiefly  as  to  the  kind 
and  amount  of  testimony  necessary  to  establish  their 
identity.  If  a  sealed  instrument,  its  execution  must  be 
proved  by  the  testimony  of  at  least  one  subscribing  wit- 
ness, unless  the  document  is  in  the  hands  of  the  opposite 
party,  or  be  over  thirty  years  old  and  comes  from  the 
proper  custodian,  in  which  case  it  is  said  to  prove  itself. 

283.  Notice  to  Produce;  Proof  of  Handwriting. — 
The  production  of  a  paper,  if  in  the  hands  of  the  opposite 
party,  is  obtained  by  a  formal  notice  to  produce.  If  the 
paper  is  in  the  hands  of  a  third  party,  not  a  party  in  in- 
terest, its  production  is  compelled  by  a  subpcena  duces 
tecum.  When  the  paper  cannot  be  produced  by  the 
above  methods,  secondary  evidence  may  be  submitted  as 


62  Digest  of  Davis'  Military  L,aw  of  the  U.  S. 

to   its   contents.     When  written   copies  are  submitted, 
^vitnesses  are  called  to  prove  handwriting,  and  they  testify 
(a)     From  having  seen  the  document  written; 
(6)    From  having  seen  writings  personally  ad- 
mitted by  the  writer  to  be  genuine;  and 
(c)     By  a  comparison  of  writings. 
Note:     A  descriptive  list  is  but  secondary  evidence, 
and^not  admissible  to  prove  the  facts  recited  therein. 

284.  Production  of  Telegrams. — Beyond  the  power 
of  a  court-martial  to  compel  a  telegraph  operator,  against 
his  will,  to  surrender  a  dispatch,  or  copy,  to  be  used  as 
evidence. 

ALTERATIONS  AND  ERASURES. 

284.  Nature  and  Effect. —  Interlineations  consist  of 
words  inserted  between  the  lines;  erasures  are  effected  by 
striking  out  words.  The  effect  of  such  alterations,  if 
material  and  unexplained,  is  to  invalidate  the  instrument. 

EXAMINATION  OF  WITNESSES. 

285.  Cross  -  Examination.  —  The  right  to  cross 
examine  is,  in  general,  limited  to  matters  stated  by  a 
witness  in  his  direct  examination.  If  a  party  wishes  to 
examine  a  witness  of  the  opposite  side  with  regard  to  new 
matter  not  introduced  by  the  opposite  party,  he  must  make 
the  witness  his  own  by  introducing  him  at  a  subsequent 
stage  of  the  trial. 

The  purpose  of  cross-examination  is  to  test  the  cred- 
ibility of  the  witness. 

288.  Leading  Questions. — In  order  to  test  the  credi- 
bility of  the  witness,  leading  questions  may  be  put  in 


and  the  Manual  for  Courts-Martial  63 

cross-examination,  together  with  questions  not  otherwise 
relevant,  the  purpose  of  which  is  to  test  his  powers  of  ob- 
servation, the  accuracy  of  his  memory,  and  his  correctness 
of  statement. 

PRIVILEGED  QUESTIONS. 

287.  Nature  of  Privilege. — Witnesses  are  permitted 
to  decline  to  answer  certain  questions,  called  privileged 
questions.     The  principal  cases  of  privilege  are: 

(a)  State  Secrets. — This  privilege  has  its  origin 

in  the  belief  that  the  public  interests 
would  suffer  by  a  disclosure  of  certain 
facts  relating  to  the  administration  of 
State  affairs. 

(b)  Attorney  and  Client. — The  disclosures  made 

by  a  client  to  his  counsel  are  privileged 
during  the  entire  period  within  which 
the  relation  of  attorney  and  client  exists. 

(c)  Husband  and  Wife. — The  law  forbids  either 

to  testify  as  to  any  confidential  commu- 
nications made  during  the  continuance 
of  the  marriage  relation. 

(d)  Criminating  Questions;    By    Whom    De- 

termined.— The  witness  is  privileged  to 
decline  to  answer  a  question  which 
would  criminate  him  or  expose  him  to  a 
penalty  or  forfeiture,  the  court  determ- 
ining whether  or  not  the  question  shall 
be  answered;  nor  can  the  witness  be 
compelled  to  produce  documents  which 
would  tend  to  criminate  him,  or  be  re- 


64  Digest  of  Davis'  Military  Law  of  the  U.  S. 

quired  to  make  ^^profert  of  the  person'' 
— that  is,  to  expose  any  part  of  his  body 
usually  covered  by  his  clothing. 
(e)  Questions  Tending  to  Disgrace  Witness. — 
A  witness  is  privileged  to  decline  to  an- 
swer a  question  which  tends  to  disgrace 
him,  unless  the  answer  would  bear  di- 
rectly upon  the  issue. 

CREDIBILITY  OF  WITNESSES. 

290.  Credibility  in  General. — The  credibility  of  a 
witness  is  his  worthiness  of  belief,  and  is  determined  by 
the  court. 

Where  one  witness  testifies  positively  and  another 
negatively,  both  being  credible,  greater  weight  is  to  be 
given  to  the  former. 

291.  Conflicting  Testimony. — In  case  of  conflict, 
the  greater  weight  should  be  given  to  the  testimony  of 
those  witnesses  whose  position  gave  them  the  best  oppor- 
tunity for  observation. 

291.  Impeaching  Credit. — The  credibility  of  a  wit- 
ness may  be  attacked  in  cross-examination;  so,  too,  his 
reputation  for  veracity  may  be  impeached. 

291.  Reputation  and  Character  .-^Testimony  im- 
peaching credibility  is  usually  addressed  to  the  person's 
reputation  for  veracity.  When  the  reputation  of  a  wit- 
ness in  this  regard  has  been  established  in  evidence,  it  is 
permitted  in  some  Qases  to  ask  the  witness  whether  he  • 
would  believe  such  a  person  on  his  oath. 

292.  Inconsistent  Statements. — Witnesses  may  be 
shown,  by  their  own  testimony  or  that  of  others,  to  have 


and  the  Manual  for  Courts-Martial  65 

made  statements  out  of  court  not  consistent  with,  and 
in  some  cases  opposed  to,  those  made  in  their  sworn 
testimony. 

REFRESHING  MEMORY. 

292.  When  Permissible. — A  witness  while  under- 
going examination  may  refresh  his  memory  from  notes 
made  by  himself  at  the  time  of  the  transaction  to  which 
he  testifies,  if  he  can  swear  that  they  were  made  or  read 
by  him  at  the  time  when  the  events  occurred. 

ADMISSION  OF  FACTS  WITHOUT  PROOF. 

292.  Admissions. — The  existence  of  a  fact  may  be 
admitted  by  either  party,  or  by  an  agreement  between 
both  parties. 

NUMBER  OF  WITNESSES. 

292.  When  Important. — As  a  general  rule,  the  testi- 
mony of  a  single  competent  and  credible  witness  is  suffi- 
cient to  establish  a  fact  in  evidence,  unless  otherwise  pro- 
vided by  the  Constitution  or  a  statutory  provision.  In 
cases  of  perjury  the  testimony  of  two  witnesses  is  nec- 
essary to  convict. 

293.  Cumulative  Evidence  is  further  or  additional 
proof  as  to  a  point  or  fact  which  has  already  been  estab- 
lished by  the  testimony  of  competent  and  credible  wit- 
nesses, and,  if  objected  to,  will,  in  general,  be  rejected. 

DEPOSITIONS. 

294.  Depositions  in  Evidence. — A  deposition  is  a 
written  declaration  under  oath,  made  upon  notice  to  the 


66  Digest  of  Davis'  Military  Law  of  the  U.  S. 

adverse  party  for  the  purpose  of  enabling  him  to  attend 
and  cross-examine,  or  make  use  of  written  interrogatories 
for  that  purpose. 

294.  Distinguished  from  Affidavits. — Affidavits  are 
voluntary  oaths  attesting  correctness  of  certain  facts 
contained  in  a  written  instrument — ex  parte  in  charac- 
ter— not  admissible  in  the  practice  of  courts-martial. 

Depositions  are  instruments  of  evidence,  and  con- 
stitute means  by  which  guilt  or  innocence  may  be 
determined. 

295.  Depositions  in  Court  -  Martial  Procedure.  — 
Depositions  cannot  be  received  in  capital  cases,  and  in 
other  cases  only  when  the  witness  resides  without  the 
State,  Territory,  or  District  in  which  the  court  may  be 
ordered  to  sit. 

296.  Procedure.  —  Interrogatories  are  drawn  up  by 
the  party  who  desires  the  testimony  of  the  witness,  and 
cross-interrogatories  are  framed  by  the  opposite  party. 
After  both  lists  have  been  accepted  by  the  court,  the 
judge-advocate  prepares  duplicate  subpoenas  requiring 
the  witness  to  appear  in  person  at  a  time  and  place  to  be 
fixed  by  the  officer  who  is  to  take  the  deposition.  The 
judge-advocate  will  then  send  the  interrogatories  and 
subpoenas  to  the  convening  authority,  with  a  request  that 
the  deposition  be  secured. 

297.  Evidential  Value. — Objections  to  the  compe- 
tency of  a  deponent  should  be  raised  prior  to  the  reading 
of  his  deposition.  Sht)uld  the  deponent  be  found  to  be 
incompetent,  his  deposition  is  rejected  by  the  court.  One 
party  cannot  withhold  a  deposition  against  the  consent 
of  the  other. 


and  the  Manual  for  Courts-Martial  67 

Note  :  It  has  been  held  that  a  deposition,  duly  taken, 
cannot  be  rejected  by  the  court  merely  upon  the  ground 
that  ^'in  all  criminal  prosecutions  the  accused  shall  enjoy 
the  right  to  be  confronted  with  the  witnesses  against 
him'^;  this  constitutional  provision  having  no  application 
to  courts-martial. 

PRESUMPTIONS. 

298.  Nature  and  Character.  —  Presumptions  are  ei- 
ther legal  assumptions,  or  logical  inferences  from  the  exist- 
ence of  certain  facts,  as  to  the  existence  or  non-existence 
of  facts  in  issue. 

If  logical  inferences,  they  are  presumptions  of  fact; 
if  legal  assumptions,  they  are  presumptions  of  law. 

298.  Presumptions  of  Fact  are  based  upon  facts 
which  must  be  derived  from  the  evidence  submitted  and 
irreconcilable  with  any  reasonable  theory  of  innocence. 

298.  Presumptions  of  Law  are  assumptions  of  the 
truth  of  certain  facts  without  proof  of  their  existence; 
they  assume  a  certain  fact  or  set  of  facts  to  exist  as  a 
probable  consequence  of  the  existence  of  other  facts. 

Presumptions  of  law  are  classified  into  conclusive 
or  absolute  presumptions  and  disputable  presumptions. 
(a)     A  conclusive,  absolute ,  or  indisputable  pre- 
sumption is  one  which  assumes  a  fact  or 
condition  of  fact  to  exist,  and  forbids  al  1 
proof  to  the  contrary. 
(6)    A  disputable  presumption  consists    in    the 
assumption  of  the  truth  of  a  fact  until 
the  contrary  is  proven. 


68  Digest  of  Davis*  Military  Law  of  the  U.  S. 


CHAPTER  XVI. 


Martial  Law. 

300.     Military  Government;  Military  Commissions. 

— Martial  law  is  a  term  applied  to  the  temporary  gov- 
ernment by  military  authority  of  a  place  or  district  in 
which,  by  reason  of  the  existence  of  civil  disorder  or  a 
state  of  war,  the  civil  government  is  unable  to  exercise  its 
functions. 

Note:    Not  synonymous  with  military  law,  which 

is  a   department  of  the  municipal  law  applicable  to  a 

small  portion  of  the  people  engaged  in  a  special  service. 

Martial   law  may  be  regarded  from  several  points 

of  view: 

(a)    300.     In  Its  Application  to  the  Occupied 
Territory  of  an    Enemy  in  War    it    is 
f  called  ^Hhe  law  of  hostile  occupation.'^ 

When  Applicable. — It  applies  to  territory 
over  which  the  Constitution  and  laws  of 
the  United  States  have  no  operation  and 
in  which  the  guarantees  which  are  con- 
tained in  that  instrument  are  entirely 
inoperative. 
The  municipal  laws  of  a  conquered  country 
continue  in  force  during  the  military  oc- 
cupation by  the  conqueror,  except  in  so 
.  far  as  the  same  may  necessarily  be  sus- 
pended. 


and  the  Manual  for  Courts-Martial  69 

(6)    301 .    Application  to  Territory  of  the  United 
States  in  Insurrection  or  Rebellion.  — 

When  a  state  of  public  war  exists,  the 
participants  in  such  insurrection  become 
pubUc  enemies,  and  the  territory  consti- 
tuting the  theater  of  operations  becomes 
the  territory  of  the  enemy. 
(c)  303.  Application  of  Martial  Law  to  Do- 
mestic Territory  in  Case  of  Civil  Disor- 
der, or  of  Resistance  to  the  Execution  of 
the  Laws,  where  the  civil  authorities, 
by  reason  of  civil  disturbances,  are  una- 
ble to  preserve  the  peace  or  to  afford 
adequate  protection  to  life  and  property. 

304.  Declaration  or  Recognition;  Source  of  Au- 
thority.— Martial  law  is  not  created  by  law;  it  exists  as  a 
matter  of  fact,  but  its  existence  is  recognized  solely  as  a 
matter  of  necessity.  It  cannot  be  created  or  terminated 
by  any  authority  conferred  by  the  Constitution. 

305.  When  in  Existence;  By  Whom  Recognized. — 
Martial  law  comes  into  being  as  a  question  of  imperative 
necessity.  Its  existence  can  only  be  justified  by  the 
emergency  of  an  existing  situation,  when  life  and  prop- 
erty can  only  be  protected  by  the  use  of  military  force. 

305.  How  Declared  or  Recognized  to  Exist. — In  the 
event  of  a  sufficient  emergency,  martial  law  may  be  de- 
clared to  exist  by  proclamation  issued  by  the  President 
or  by  the  proper  military  commander.  .  It  should  describe 
the  emergency  and  define  the  limits  within  which  it  exists, 
and  should  prescribe  such  rules  of  conduct  for  the  guidance 


70  Digest  of  Davis'  Military  Law  of  the  U.  S. 

of  individuals   as   are  warranted  by  the  necessities  of 
the  case. 

306.  Extent  of  Its  Application. — As  the  emergency 
may  be  in  the  nature  of  an  insurrection,  or  in  resistance  to 
the  execution  of  a  single  law,  the  employment  of  force 
must  be  in  direct  proportion  to  the  emergency. 

306.  By  Whom  Exercised. — Martial  law  is  executed 
by  the  general  commanding  the  military  forces,  under 
direction  of  the  President,  in  conformity  with  the  usages 
of  war,  as  determined  by  the  character  of  an  existing 
emergency. 

307.  Rules  for  Its  Exercise. — The  civil  laws  are 
not  annulled,  but  temporarily  suspended,  and  should  be 
conformed  to  in  spirit.  No  measures  involving  restraints 
on  personal  liberty  can  be  resorted  to  unless  warranted  by 
an  existing  emergency.  Every  step  taken  must  be  with  a 
view  to  the  restoration  of  order  and  the  replacement  of 
the  civil  authority. 

MILITARY   COMMISSIONS. 

307.  Authority  and  Function.  —  Military  commis- 
sions are  criminal  war-courts,  resorted  to  for  the  reason 
that  the  jurisdiction  of  the  courts-martial,  created  as  they 
are  by  statute,  is  restricted  by  law,  and  cannot  be  ex- 
tended to  include  certain  classes  of  offenses  which  in  war 
would  otherwise  go  unpunished. 

309.  Constitution  and  Composition.  —  Same  rules 
that  govern  the  constitution,  composition,  and  procedure 
of  general  courts-martial  apply  in  general  in  these  par- 
ticulars to  military  commanders. 


and  the  Manual  for  Courts-Martial  71 

309.     Composition.— Usage  has  fixed  the  minimum 
of  members  at  three. 

309.     Jurisdiction  of  military  commissions  is  exer- 
cised over  two  classes  of  ofTenses: 

(a)     Violations  of  the  laws  of  war. 
(6)     Civil  crimes:  when  such  offenses  are  com- 
mitted by  civilians  or  military  persons, 
either 

(1)  In  the  enemy's  country,  or 

(2)  In  a  locality  in  which  martial  law 

has  been  established  by  a  compe- 
tent authority. 
313.     Sentences  should  award  criminal  punishment. 
A  judgment  of  debt  or  damages,  on  conviction  of  a  crim- 
inal offense,  would  be  irregular,  and  would  be  properly 
disapproved. 


72  Digest  of  Davis'  Military  Law  of  the  U.  S. 


CHAPTER  XVII. 


Habeas  Corpus. 

314.  Purpose  and  Effect. — The  purpose  of  the  writ 
of  habeas  corpus  is  to  furnish  a  summary  remedy  for  all 
cases  in  which  the  person  of  a  citizen  is  subjected  to  un- 
lawful restraint  or  imprisonment.  Both  Federal  and 
State  courts  have  power  to  issue  the  writ.  It  is  issued  by 
State  courts  in  a  much  greater  number  of  cases. 

314.  Jurisdiction  of  the  Federal  Courts. — The  law 
confers  power  upon  the  Supreme  Court  and  the  several 
Circuit  and  District  Courts  of  the  United  States,  also 
the  several  justices  and  judges  of  said  courts,  to  issue 
writs  of  habeas  corpus  for  the  purpose  of  inquiring  into 
the  cause  of  restraints  upon  liberty. 

315.  Character  of  the  Restraint.  —  The  restraint 
may  consist  in  the  actual  arrest  or  confinement  of  a  mil- 
itary person,  or  in  the  confinement  of  a  citizen  by  the 
military  authority.  The  legality  of  enlistment  of  a  mi- 
nor without  proper  consent  may  be  made  the  subject  of 
inquiry. 

316.  Procedure. — The  parties  to  the  writ  are  the 
petitioner,  in  whose  behalf  the  writ  was  issued,  and  the 
respondent,  the  officer  to  whom  the  writ  is  addressed. 
The  usual  procedure  is  for  the  court,  on  the  application  of 
the  prisoner  for  a  writ  of  habeas  corpus,  to  issue  the  writ 
and,  on  its  return,  to  hear  and  dispose  of  the  case. 


and  the  Manual  for  Courts-Marttal  73 

317.  Return. — Where  the  writ  issues  from  a  Fed- 
eral court,  it  is  the  duty  of  the  officer  holding  the  prisoner 
in  custody  to  bring  him  into  the  presence  of  the  court,  and 
to  make  a  return  in  writing,  setting  forth  reasons  for  the 
restraint,  and  submitting  to  the  court  the  whole  question 
of  authority  and  discharge. 

318.  Conflicts  of  Jurisdiction  Between  the  State  and 
Federal  Courts. — The  jurisdiction  of  State  and  Federal 
courts  being  limited  by  statute,  neither  court  may  issue  a 
writ  of  habeas  corpus  properly  falling  within  the  juris- 
diction of  the  other. 

A  State  court  has  no  jurisdiction  by  habeas  corpus 
to  release  a  prisoner  held  by  order  of  a  Federal  court;  it 
has  no  jurisdiction  by  such  a  writ  over  the  detention  of  an 
enlisted  soldier  of  the  United  States. 

320.  Suspension  of  the  Privilege  of  the  Writ  of 
Habeas  Corpus. — It  shall  not  be  suspended  unless  when, 
in  cases  of  rebellion  or  invasion,  the  public  safety  may 
require  it. 


74  Digest  of  Davis'  Military  Law  of  the  U.  S. 


CHAPTER  XIX. 


The  Articles  of  War. 

367.  Musters  (Article  56). — A  muster  is  the  peri- 
odical assembling  of  organized  commands  for  review  and 
personal  inspection,  with  a  view  to  the  verification  of 
their  numbers  and  equipment,  and  the  presence  and 
identity  of  their  individual  members. 

378.  False  Muster  may  be  said  to  consist  in  any 
acquiescence  on  the  part  of  the  mustering  officer  in  false 
or  fraudulent  presentation  or  enumeration  of  any  person 
or  article  of  property  presented  for  muster  on  the  official 
muster-rolls. 

379.  Orders;  Nature  and  Character  (Article  64). — 
Orders  are  authoritative  directions  in  respect  to  the  mili- 
tary service  issuing  from  a  competent  military  superior. 

380.  Essential  Elements. — The  subordinate  is  not 
permitted  to  question  either  the  propriety  or  legality  of 
an  order. 

A  lawful  order  is  a  command,  issued  by  a  military 
superior  to  a  person  under  his  command,  requiring  an  act 
to  be  done  which  is  permitted  or  justified  by  law. 

Except  where  the  illegality  of  an  order  is  glaringly 
apparent  on  the  face  of  it,  a  subordinate  is  compelled  to  a 
strict  obedience. 

382.  When  Operative. — An  order  becomes  operat- 
ive where  military  notice  of  its  existence  and  contents 
has  been  communicated  to  the  persons  concerned. 


and  the  Manual  for  Courts-Martial  75 

The  notice  of  the  order,  to  affect  the  officer,  should 
be  a  personal  notice,  actual  or  constructive,  and  it  should 
be  an  official  notice. 

382.  Disobedience  of  Orders. — The  offense  of  diso- 
bedience of  orders  consists  in  a  refusal  or  neglect  to  comply 
with  a  specific  order  to  do  or  not  to  do  a  particular  thing. 
A  mere  failure  to  perform  a  routine  duty  is  properly 
chargeable  under  Article  96,  as  also  a  breach  of  an  Army 
regulation. 

A  non-compliance  by  a  soldier  with  an  order  eman- 
ating from  a  non-commissioned  officer  is  charged  under 
the  96th  Article. 

383.  Character  of  Disobedience.  —  Disobedience 
may  be  either  negative  or  positive.  In  the  first,  the  orders 
might  be  of  no  immediate  urgency  or  of  no  great  import- 
ance, or  the  disobedience  might  arise  out  of  simple  negli- 
gence, as  the  non-observance  or  neglect  of  orders  of  long 
standing.  In  none  of  these  cases  is  there  implied  any 
bold  or  wanton  defiance  of  authority,  or  any  more  serious 
offense  than  is  provided  against  in  the  96th  Article. 

In  the  second,  the  absolute  resistance  of  or  refusal 
of  obedience  to  a  present  and  urgent  command,  either 
oral  or  written,  by  the  non-compliance  with  which  some 
immediate  and  necessary  act  might  be  impeded  or  de- 
feated, is  properly  chargeable  under  the  64th  Article. 

384.  Specific  Character  of  the  Mandate. — The  diso- 
bedience of  orders  contemplated  by  the  64th  Article  is  a 
positive  and  willful  disobedience  of  an  order  specially  or 
directly  given  to  the  accused,  and  not  a  mere  neglect  or 
omission  of  general  duty. 

385.  Channels  of  Communication. — An  official  com- 


76  Digest  of  Davis'  Military  Law  of  the  U.  S. 

munication  made  to  the  accused  by  any  commissioned 
officer,  stating  that  the  superior  directs  him  to  do  so  and 
so,  is  an  order.  The  agent  communicating  the  orders 
should  state  that  he  does  so  by  the  order,  or  by  the  direc- 
tion or  request,  of  the  superior. 

387.  Striking  a  Superior  Officer,  Etc. —  The  offense 
contemplated  in  the  article  consists  in  the  infliction  of  any 
bodily  injury,  however  slight,  upon  the  person  of  a  mili- 
tary superior,  such  superior  being  a  commissioned  officer; 
or  in  an  attempt  to  inflict  such  injury  by  drawing  or  lift- 
ing up  any  weapon,  attended  by  such  circumstances  as 
denote  an  intention  to  inflict  injury. 

388.  Being  in  the  Execution  of  His  Office. — It  is  an 
essential  element  of  the  offense  that  the  officer  should  be 
in  the  execution  of  his  office. 

389.  Drawing  and  Lifting  Up  Any  Weapons ;  Offer- 
ing Violence. — The  words  ^^  draws  or  lifts  up  any  weapon, 
or  offers  any  violence  against  him,"  import  an  "assault,^' 
which  may  be  defined  as  an  unlawful  attempt  to  do  injury 
to  the  person  of  another,  coupled  with  the  capacity  to 
inflict  the  injury  at  the  instant  when  the  violence  is 
offered. 

389.  Article  66. — Mutiny  may  be  defined  to  be  an 
unlawful  opposing  or  resisting  of  lawful  military  au- 
thority, with  intent  to  subvert  the  same  or  to  nullify  it 
for  the  time.  The  offense  here  defined  will  be  a  con- 
certed proceeding;  the  concert  itself  going  far  to  establish 
the  intent  necessary  to  the  legal  crime. 

396.  Challenges  (Article  91).— To  estabfish  that  a 
challenge  was  sent,  there  must  appear  to  have  been  com- 
municated by  one  party  to  the  other  a  deliberate  invita- 


and  the  Manual  for  Courts-Martial  77 

tion  in  terms  or  in  substance  to  engage  in  a  personal 
combat  with  deadly  weapons,  with  a  view  to  obtaining 
satisfaction  for  wounded  honor. 

402.  Article  61. — The  offense  of  absence  without 
leave  is  chargeable  under  this  article  in  the  case  of  an  en- 
listed man,  and  under  the  96th  Article  in  the  case  of 
an  officer. 

If,  upon  returning  from  an  unauthorized  absence,  an 
officer  or  soldier  is  placed  upon  or  allowed  to  perform  full 
duty,  such  action  operates  as  a  waiver  of  the  charge  of 
absence  without  leave. 

408.  On  Duty;  Off  Duty.— The  words  ^^on  duty,'' 
as  used  in  the  58th  Article  and  as  applied  to  the  com- 
manding officer  of  a  post,  or  of  an  organization,  or  of  a 
detachment  in  the  field,  the  senior  officer  present,  in  the 
actual  exercise  of  command,  is  constantly  on  duty;  the 
term  being  here  used  in  contradistinction  to  ^^on  leave.'' 

408.  Nature  of  Intoxicant. — It  is  immaterial  wheth- 
er the  drunkenness  be  voluntarily  induced  by  spirituous 
liquor  or  by  opium  or  other  intoxicating  drug. 

The  drunkenness  need  not  be  such  as  totally  to  in- 
capacitate the  party  for  duty;  it  is  sufficient  if  it  be  such 
as  materially  to  impair  the  full  and  free  use  of  his  mental 
or  physical  abilities. 

420.  Definition  (Article  58). — Desertion  is  an  unau- 
thorized absenting  of  himself  from  the  military  service  by 
an  officer  or  soldier,  with  the  intention  of  not  returning. 
The  essential  elements  of  the  offense  are  the  fact  of  the 
unauthorized  voluntary  withdrawal  and  the  intent  per- 
manently to  abandon  the  service. 

427.    Statutory  Consequences  of  Desertion. — Cer- 


78  Digest  of  Davis'  Military  Law  of  the  U.  S» 

tain  statutory  consequences  follow  upon  conviction  of  the 
offense  of  desertion.     These  are: 

(a)     The  obligation  to  make  good  the  time  lost ; 

(6)    Forfeiture  of  the  rights  of  citizenship; 

(c)  Incapacity  to  hold  office  under  the  United 

States ; 

(d)  Forfeiture  of  retained  pay  and  deposits. 
439.  Safeguards  (Article  78). — A  safeguard  is  a  writ- 
ten instrument  issued  by  a  general  commanding  an  army 
in  the  field,  for  the  purpose  of  affording  protection  to  the 
person  or  property  of  a  non-combatant  within  the  theater 
of  active  military  operation. 

439.  Forcing  a  Safeguard.  —  The  offense  is  com- 
mitted by  a  military  person,  who,  with  a  knowledge  of  its 
existence,  does  any  act  of  violence  or  spoliation  in  or  upon 
the  premises  protected,  or  willfully  disregards  the  protec- 
tion offered  by  the  instrument. 

440.  Application  of  the  Article  (Article  93). — In  im- 
posing punishment,  the  court  should  be  governed  by  the 
local  law,  although  the  offense  was  committed  in  a  State 
whose  ordinary  relations  to  the  general  government  had 
been  suspended  by  a  state  of  war. 

441.  Arson  is  the  malicious  and  willful  burning  of 
the  house  of  another. 

It  is  sufficient  if  the  wood  of  the  house  be  charred  in 
a  single  place  so  as  to  destroy  its  fiber. 

442.  Assault  and  Battery. — The  offense  of  assault 
and  battery  is  composed  of  the  two  elements  named,  which, 
taken  together,  constitute  the  complete  offense.  An  as- 
sault is  an  attempt  with  force  and  violence  to  do  corporal 
injury  to  another,  as  by  striking  at  him  with  a  weapon. 


and  the  Manual  for  Courts-Martial  79 

Even  striking  at  a  person,  though  no  blow  be  inflicted, 
or  raising  the  arm  to  srike,  or  holding  up  one's  fist  at 
him,  if  done  in  anger  or  in  a  menacing  manner,  are  con- 
sidered by  law  as  assaults. 

Battery  is  the  unlawful  beating  or  wounding  of  an- 
other. A  battery,  from  the  nature  of  the  offense,  includes 
an  assault,  and  is  therefore  charged  as  ^^  assault  and  bat- 
tery'';  but  there  may  be  an  assault  without  battery, 
which  is  regarded  by  the  law  as  a  criminal  offense. 

442.  Assault  and  Battery  with  Intent  to  Kill.  —  The 
proof  under  a  charge  of  ^  ^assault  with  intent  to  kilP'  must 
be  such  as  to  show  that,  if  death  had  been  caused  by  the 
assault,  the  assailant  would  have  been  guilty  of  murder. 

443.  Burglary  is  the  breaking  and  entering  of  a 
dwelling-house  by  night  with  intent  to  commit  a  felony 
therein,  whether  such  felonious  intent  be  executed  or  not. 
The  breaking  is  either  actual,  as  where  the  person  makes 
a  hole  in  a  door  or  opens  a  window,  or  in  law  (constructive), 
as  where  he  obtains  an  entrance  by  threats,  or  fraud,  or 
by  collusion  with  some  one  in  the  house. 

444.  The  Building. — Every  dwelling-house  is  a  habi- 
tation in  which  burglary  may  be  committed,  and  also  all 
out-houses  attached  to  the  dwelling  and  intended  for  the 
comfort  and  convenience  of  the  family. 

445.  The  Intent  will,  in  general,  be  proved  from  the 
circumstances  attending  the  commission  of  the  offense. 

445.  Murder;  Degrees. — Murder  is  the  willful  kill- 
ing of  a  human  being  in  the  peace  of  the  country,r/with 
malice  aforethought,  either  express  or  implied.  Premedi- 
tation or  malice  aforethought  is  an  essential  ingredient  of 
the  offense. 


80  Digest  of  Davis'  Military  Law  of  the  U.  S. 

446.  Manslaughter  is  the  unlawful  killing  of  a  hu- 
man being  without  malice,  express  or  implied.  It  is  vol- 
untary when  committed  with  a  design  to  kill  under  the 
influence  of  sudden  or  violent  passion,  caused  by  great 
provocation.  It  is  involuntary  when  committed  by  ac- 
cident or  without  any  intention  to  take  life. 

This  crime,  when  committed  by  a  military  person, 
may  be  taken  cognizance  of  by  a  court-martial,  in  time  of 
peace,  under  Article  96,  as  ^^ conduct  to  the  prejudice  of 
good  order  anid  mihtary  discipline.^' 

447.  Homicide  is  a  term  embracing  every  mode  by 
which  the  life  of  one  man  is  taken  by  another. 

Criminal  or  felonious  homicide  consists  in  the  un- 
lawful taking  by  one  human  being  of  the  life  of  another 
in  such  a  manner  that  he  dies  within  the  space  of  a  year 
and  a  day  from  the  time  of  the  giving  of  the  mortal 
wound. 

447.  Justifiable  Homicide  consists  in  the  taking  of 
human  life  in  obedience  to  the  law  under  such  circum- 
stances as  to  warrant  the  inference  that  the  act  was  done 
without  malice  or  criminal  intention. 

Homicide  in  obedience  to  law  includes  the  execution 
of  criminals  and  the  killing  of  enemies  in  war. 

448.  Excusable  Homicide  is  that  which  results  from 
accident  or  misadventure  in  the  doing  of  a  lawful  act  or 
in  a  proper  and  reasonable  exercise  of  the  right  of  self- 
defense. 

448.  Self  -  Defense. — A  man  may  repel  force  by 
force  in  the  defense  of  his  person,  his  family,  or  property 
against  any  one  who  manifestly  endeavors  by  violence  or 


and  the  Manual  for  Courts-Martial  81 

surprise   to   commit   a  felony — as   murder,   robbery,    or 
the  like. 

449.  Larceny  is  the  wrongful  or  fraudulent  taking 
and  carrying  away  of  things  personal,  with  the  intent  to 
deprive  the  owner  of  the  same.  There  must  not  only  be 
a  taking,  but  a  carrying  away. 

450.  Robbery  is  the  felonious  taking  of  goods  from 
the  person  of  another,  or  in  his  presence,  by  violence 
or  by  putting  him  in  fear,  and  against  his  will. 

450.  Embezzlement  is  a  species  of  larceny  in  the 
nature  of  a  criminal  breach  of  trust,  and  consists  in  the 
fraudulent  conversion  of  property  to  his  own  use  by  an 
agent,  clerk,  servant,  or  in  general  by  any  person  acting  in 
a  fiduciary  capacity. 

453.  Mayhem. — At  the  common  law  the  offense 
consisted  in  the  act  of  unlawfully  and  violently  depriving 
another  of  the  use  of  such  of  his  members  as  might  render 
him  less  able,  in  fighting,  either  to  defend  himself  or  an- 
noy his  adversary.  In  most  of  the  States  the  scope  of 
this  offense  has  been  extended  so  as  to  include  all  mali- 
cious injuries  to  the  person. 

453.  Forgery  is  the  false  or  fraudulent  making  or 
alteration  of  an  instrument,  with  intent  to  defraud  or  to 
prejudice  the  right  of  another. 

454.  Perjury  may  be  defined  as  ''false  swearing," 
and  includes  the  breach  of  the  solemn  sanction  of  an  oath 
or  the  making  of  a  false  oath. 

When  a  witness  to  whom  a  lawful  oath  has  been  ad- 
ministered in  a  judicial  proceeding  swears  falsely  in  a 
matter  material  to  the  issue,  he  is  said  to  commit  perjury. 
The  fact  sworn  to  should  be  material;  for  if  such  fact  have 


82  Digest  of  Davis'  Military  Law  of  the  U.  S. 

no  bearing  upon  the  issue,  the  administration  of  justice 
has  not  been  affected  injuriously  and  there  has  not  been 
perjury. 

Subornation  of  perjury  is  the  offense  of  procuring 
another  to  take  such  a  false  oath  as  constitutes  perjury 
in  the  principal. 

455.  Perjury  in  Military  Practice. — False  swearing 
by  a  military  person  before  a  court-martial  is  "conduct 
to  the  prejudice  of  good  order  and  military  discipline, ' ' 
and  is  cognizable  and  punishable  under  Article  96.  And 
a  charge  of  "perjury"  in  connection  with  a  specification 
setting  forth  a  false  swearing  upon  a  court-martial  will 
constitute  a  sufficient  allegation  of  an  offense  under  this 
article. 

False  Swearing  before  a  court-martial  not  being  per- 
jury at  common  law,  the  rules  as  to  the  character  and 
amount  of  evidence  necessary  to  sustain  an  indictment 
for  perjury  need  not  govern  the  proof  of  the  military 
offense;  such  offense  will  ordinarily  be  established  by  the 
written  record. 

473.  Neglects  and  Disorders  (Article  96).— A  " neg- 
lect'' is  an  omission  or  forbearance  to  do  a  thing  that  can 
be  done  or  that  is  required  to  be  done.  Law,  regulations, 
orders,  and,  where  these  are  silent,  the  custom  of  service 
prescribe  the  several  military  duties  and  obligations  the 
neglect  of  which  is  chargeable  under  this  article.  The 
term  "disorder''  is  more  comprehensive  than  when  used 
in  reference  to  civil  affairs,  and  includes  not  only  disorders 
in  the  sense  of  quarrels  and  the  like,  but  all  interruptions 
of  the  good  order  which  should  prevail  in  camp  or  garrison . 

551.    Remission  (Article  50)  is  a  partial  exercise  of 


and  the  Manual  for  Courts-Martial  83 

the  pardoning  power,  relieving  the  person  from  a  punish- 
ment or  the  unexecuted  portion  of  a  punishment,  but  not 
pardoning  the  offense  as  such,  or  removing  the  disabilities 
or  penal  consequences  attaching  thereto. 

551 .  Mitigation  is  a  reduction  by  the  reviewing  au- 
thority of  a  punishment  in  quantity  or  quality,  without 
changing  its  species.  Imprisonment,  fine,  forfeiture,  and 
suspension  are  capable  of  mitigation.  A  punishment  in 
itself  illegal  is  not  capable  of  mitigation. 

552.  Commutation  is  a  substitution  of  some  other 
punishment  for  that  named  in  the  sentence,  where,  as  in 
the  case  of  a  sentence  of  death,  dismissal,  or  dishonorable 
discharge,  there  is  no  lesser  form  or  degree  of  the  same 
punishment  to  which  a  sentence  can  be  reduced  by  way 
of  mitigation,  mercy,  or  clemency. 

553.  Procedure  Under  Article  111 . — AppUcations  for 
copies  of  the  proceedings  and  sentence  of  a  court-mar- 
tial may  be,  and  in  practice  commonly  are,  addressed 
to  the  Judge-Advocate  General,  who  thereupon  furnishes 
the  copy  certified  by  him  as  correct,  provided  the  applica- 
tion is  made  by  the  accused  or  in  his  behalf. 

A  person  applying  for  the  copy  in  behalf  of  the  ac- 
cused should  exhibit  some  satisfactory  evidence  that  he 
duly  represents  the  accused. 

A  copy  of  the  proceedings  and  sentence  cannot  prop- 
erly be  furnished  until  the  same  have  been  finally  acted 
upon  and  such  action  has  been  promulgated  in  the  usual 
manner. 


and  the  Manual  for  Courts-Martial  85 


Questions  and  Answers  on  Manual  for 
Courts-Martial 


(Numbers  Refer  to  Pages.) 

Q.  5.     What  are  the  four  kinds  of  Mihtary  Jurisdiction:     De- 
fine each. 

A.     (a)  Military  Law  is  the  legal  system  that  regulates  the 

government  of  the  military  establishment.     It  is  a 

branch  of  the  municipal  law. 

(b)  The  Law  of  Hostile  Occupation  is  the  miUtary  power 

exercised  by  a  belligerent,  by  virtue  of  his  occupation 
of  an  enemy's  territory,  over  such  territory  and  its 
inhabitants. 

(c)  Martial  Law  at  Home  is  the  military  power  exercised 

in  time  of  war,  insurrection,  or  rebellion,  in  parts  of 
the  country  retaining  their  allegiance,  and  over  per- 
sons and  things  not  ordinarily  subjected  to  it. 

(d)  Martial  Law  Applied  to  the  Army  is  the  military  power 

extending  in  time  of  war,  insurrection,  or  rebelhon 
over  persons  in  the  military  service,  as  to  obligations 
arising  out  of  such  emergency  and  not  falling  within 
the  domain  of  military  law  nor  otherwise  regulated 
by  law.  '^ 

Q.  6.     What  is  the  source  of  Military  Jurisdiction? 
A.     The  Constitution. 

Q.  6.     What  are  the  written  sources  of  Military  Law? 
A.     The  Articles  of  War;  other  statutory  enactments  relating 
to   the   mihtary  service;    Army  Regulations;  general   and   special 
orders  and  decisions  promulgated  by  the  War  Department  and  by 
def)artment,  post,  and  other  commanders. 

Q.  6.     What  is  the  unwritten  source  of  Military  Law? 


86  Digest  of  Davis'  Military  Law  of  the  U.  S. 

A.  The  ''custom  of  war,"  consisting  of  the  customs  of  the 
service  both  in  peace  and  in  war. 

Q.  6.     Name  the  three  kinds  of  MiUtary  Tribunals. 

A.     (a)  Courts-Martial,  for  the  trial  of  offenders  against  the 
military  law; 
(6)  Courts  of  Inquiry,  for  examining  transactions  agg^inst 

officers  or  soldiers; 
(c)  Military  Commissions,  for  the  trial  of  offenders  against 
the  laws  of  war  and  under  martial  law,  founded  in 
necessity. 

Q  6.  When  only  mil  non-commissioned  officers  be  confined  in 
the  guard-house? 

A.     In  aggravated  cases  or  where  escape  is  feared. 

Q.  8.  What  means  of  restraint  is  authorized  in  the  case  of 
soldiers  against  whom  charges  may  be  preferred  for  trial  by  sum- 
mary court? 

A.  They  will  not  be  confined  in  the  guard-house,  but  will  be 
placed  in  arrest  in  quarters. 

Q.  9.  What  is  the  duty  of  an  officer  authorizing  the  arrest  oi 
confinement  of  a  soldier? 

A.  He  will,  as  soon  as  practicable,  report  the  fact  to  the  sol- 
dier's company  commander. 

Q.  11.  What  class  of  officers  of  the  regular  Army  are  ineligible 
for  detail  for  the  trial  of  offenders  belonging  to  the  regular  Army? 

A.  Those  on  the  retired  list,  contract  surgeons,  veterinarians, 
and  chaplains — in  practice. 

Q.  11.  Are  officers  of  the  regular  Army  eligible  to  sit  on  courts 
for  the  trial  of  offenders  belonging  to  other  forces? 

A.  No;  but  officers  of  the  Marine  Corps,  when  detached  for 
duty  with  the  Army,  are  so  eligible. 

Q.  11.  When  are  volunteer  and  militia  officers  competent  to 
act  as  members  of  courts  for  the  trial  of  regular  officers  and  soldiers? 

A.     When  called  into  the  service  of  the  United  States. 

Q.  11.  What  is  the  rule  with  respect  to  the  membership  of 
courts-martial  for  the  trial  of  the  militia? 

A.  The  majority  of  membership  must  be  composed  of  militia 
officers. 

Q.  12.     Name  the  Inferior  Courts-martial. 

A.     Special  and  Summary  Courts-martial. 


and  the  Manual  for  Courts-Martial  87 

Q.  12.  How  many  members  may  a  general  court-martial 
consist  of? 

A.  Not  less  than  five  or  more  than  thirteen  and  a  judge- 
advocate. 

Q.  12.  What  is  the  procedure  when  a  general  court  is  reduced 
below  five  members? 

A.     The  judge-advocate  is  directed  to  report  that  fact  to  the 
convening  authority,  and  the  court  adjourns  to  await  further  orders. 
In  such  a  case  new  members  may  be  added;  but  if  any  testimony 
has  been  taken,  the  court  should  preferably  be  dissolved. 
Q.  12.     Who  may  appoint  general  courts-martial? 
A.     (a)  The  President  as  Commander-in-chief  of  the  Army. 
(6)  Any  general  officer  commanding  an  army,  a  territorial 
division,  cr  a  department,  or  colonel  commanding  a 
separate    department;    but    when    any    such    com- 
mander is  the  accuser  or  prosecutor  of  any  officer 
under  his  command,  the  court  must  be  appointed  by 
the  President. 
(c)  The   Superintendent  of  the  United  States   Military 
Academy. 
Q.  13.     Have   courts-martial  jurisdiction  to  try  acts  which, 
besides  constituting  military  offenses,  are  also  civil  crimes? 

A.  Yes;  but  in  this  case  the  military  ordinarily  gives  preced- 
ence to  the  civil  court.  In  general,  however,  that  jurisdiction  which 
has  first  fully  attached  is  properly  allowed  to  have  precedence. 

Q.  14.  What  is  the  jurisdiction  of  courts-martial  as  regards 
per sens? 

A.  Courts-martial  have  jurisdiction  at  all  times  and  in  all 
places  over  officers  and  soldiers  of  any  troops  mustered  and  in  the 
pay. of  the  United  States,  including  retired  officers  and  soldiers. 
Military  offenses  are  not  territorial. 

Q.  14.  What  are  the  exceptions  to  the  rule  that  miUtary  juris- 
diction ends  when  a  soldier  is  discharged? 

A.  Discharged  officers  and  soldiers  guilty  of  fraud  against 
the  United  States  under  the  94th  Article  of  War;  discharged  officers 
and  soldiers  granted  trial  after  summary  dismissal,  under  Section 
1230,  R.  S.;  and  general  prisoners. 

Q.  15.  What  is  the  jurisdiction  of  courts-martial  as  regards 
of 


88  Digest  of  Davis'  Military  Law  of  the  U.  S. 

A.  It  embraces  the  offenses  defined  in  the  Articles  of  War,  the 
offense  of  mihtary  persons  trading  with  the  enemy,  and  that  of 
fraudulently  enhsting  in  the  service  ot  the  United  States. 

Q.  15.  With  reference  to  other  courts-martial,  over  what 
classes  of  persons  have  general  courts-martial  exclusive  jurisdiction? 

A.     Officers,  cadets,  and  candidates  for  promotion. 

Q.  15.  Over  what  persons  concurrent  jurisdiction  with  the 
inferior  courts? 

A.  EnUsted  men,  candidates  for  promotion,  and  general 
prisoners. 

Q.  15.  May  a  non-commissioned  officer  be  brought  to  trial 
before  a  summary  court-martial  if  he  objects  to  such  trial? 

A.  He  will  be  tried  by  general  or  special  court-martial  unless 
trial  is  otherwise  directed  by  the  officer  competent  to  appoint 
general  courts-martial. 

Q.  16.  As  regards  offenses,  what  is  the  nature  of  general  court- 
martial  jurisdiction? 

A.  They  have  exclusive  jurisdiction  over  all  offenses  pun- 
ishable capitally;  and  over  those  set  forth  in  the  92nd  and  93rd  Article, 
when  committed  in  time  of  war.  Over  other  offenses  they  have 
concurrent  jurisdiction  with  the  inferior  courts. 

Q.  16.     What  are  the  two  parts  of  a  military  charge? 

A.     (a)  The  technical  charge,  which  designates  the  alleged  of- 
fense in  general  terms; 
(6)  The  specification,  which  sets  forth  the  facts  constitut- 
ing the  same. 

Q,  16.     What  is  the  requisite  form  for  each? 

A.     (a)  The  charge  must  be  laid  under  the  proper  Article  of 
War  or  other  statute; 
(6)  The  specification  must  set  forth  facts  sufficient  to  con- 
stitute the  particular  offense. 

Q.  19.  When  will  commanding  officers  cause  the  accused  to 
sign  a  statement  that  he  consents  to  trial  by  a  summary  court? 

A.  Before  referring  the  charges  to  the  summary  court  for  trial, 
where  the  maximum  kind  oi  punishment  that  may  be  awarded  is 
greater  than  one  month's  forfeiture  and  confinement. 

Q.  19.  What  papers  should  be  forwarded  with  general  court- 
martial  charges? 

A,     Statement  of  service^  statement  of  evidence  expected  from 


and  the  Manual  for  Courts-Martial  8& 

each  witness,  and  evidence  of  previous  convictions.  In  case  of  a 
deserter,  the  surgeon's  report  required  by  Par.  125,  A.  R.,  will  also 
be  forwarded. 

Q.  20.  What  does  the  authority  appointing  a  court-martial 
designate? 

A.  The  place  for  holding  the  court,  the  hour  of  meeting,  the 
members  of  the  court,  and  the  judge-advocate. 

Q.  21.     How  do  members  of  a  court  take  their  seats? 

A.  The  president  sits  at  the  head  of  the  table,  the  other  mem- 
bers at  his  right  and  left  alternately — according  to  rank;  the  judge- 
advocate  sits  at  the  foot  of  the  table. 

Q.  21.  In  court-martial  procedure,  what  is  the  custom  as 
regards  standing? 

A.  During  the  reading  of  the  order  convening  the  court  and 
the  arraignment,  the  judge-advocate  and  the  accused  should  stand; 
while  the  court  and  the  judge-advocate  are  being  sworn,  all  stand; 
when  a  reporter,  an  interpreter,  or  a  witness  is  being  sworn,  he  and 
the  judge-advocate  should  stand;  and  when  the  judge-advocate,  the 
accused,  or  his  counsel  addresses  the  court,  he  should  rise. 

Q.  22.     When  is  the  organization  of  the  court  complete? 

A.     On  the  swearing-in  of  the  members  and  the  judge-advocate. 

Q.  22.     What  effect  has  a  tie  vote  on  the  findings? 

A.  '^Not  guilty."  A  tie  vote  on  a  proposed  sentence  or  on 
any  objection  or  motion  is  a  vote  in  the  negative. 

Q.  What  are  the  duties  of  the  judge-advocate  with  respect 
to  the  accused? 

A.  He  should  acquaint  the  prisoner  with  accusations  against 
him,  inform  him  of  his  nght  to  have  counsel  and  to  testify  in  his 
own  behalf,  and  lurnish  him  with  a  copy  of  the  charges,  if  desired. 
When  the  accused  determines  to  plead  ''guilty,"  the  judge-advocate 
should  inform  him  of  his  right  to  introduce  evidence  in  explanation 
of  the  offense,  and  should  assist  him  in  securing  it.  When  the  ac- 
cused is  without  counsel,  the  judge-advocate  should  take  care  that 
he  does  not  suffer  from  any  ignorance  of  his  legal  rights. 

Q.  26.     What  compensation  is  allowed  a  stenographic  reporter? 

A.  When  the  court  -sits  less  than  three  hours  the  first  day, 
$3.00  a  day  or  $1.00  an  hour  for  a  longer  period;  fifteen  (lo)  cents 
for  each  100  words  of  the  original  record;  no  allowance  is  made  for 
the  first  carbon  copy;  ten  (10)  cents  for  each  100  words  for  copying 


90  Digest  of  Davis'  Military  Law  of  the  U.S. 

papers  material  to  the  inquiry,  and  two  (2)  cents  for  each  100  words 
for  each  carbon  copy  of  the  same,  when  ordered;  two  (2)  cents  for 
each  100  words  for  the  second  and  each  additional  carbon  copy  of 
the  record,  when  authorized.  One  copy  of  the  record  of  a  special 
court-martial  will  be  required,  for  which  the  reporter  will  receive 
tnirteen  (13)  cents  for  each  100  words. 

Q.  27.     Wnat  is  done  with  the  carbon  copy? 

A.  It  is  furnished  to  the  accused,  if  he  desires  it,  after  being 
corrected  and  certified  as  a  true  copy,  except  as  to  findings,  sen- 
tence, and  exhibits  not  copied.  When  this  is  done,  a  certificate  to 
that  effect  will  accompany  tne  record;  otherwise,  it  will  be  trans- 
mitted direct  to  the  Judge- Advocate  General  of  the  Army. 

Q.  28.  Who  else  besides  the  accused  may  challenge  members 
of  a  court-martial? 

A.  The  judge-advocate  may  challenge  for  cause,  under  custom 
of  the  service. 

Q.  29.     Is  the  judge-advocate  challengeable? 

A.     No. 

Q.  31.  To  whom  should  application  for  a  postponement  be 
madeV 

A.     To  the  convening  authority. 

Q.  23.  What  is  the  procedure  in  the  case  of  a  prisoner  who, 
from  obstinacy  or  deliberate  design,  stands  mute  or  answers  foreign 
to  the  purpose? 

A.  The  court  will  proceed  to  trial  and  judgment  as  if  the 
prisoner  nad  pleaded  ''Not  guilty." 

Q.  44.  What  compensation  is  allowed  a  civilian  who  appears 
as  a  witness  before  a  military  court? 

A.  For  each  day  of  his  actual  attendance,  $1.50;  for  transpor- 
tation, 5  cents  a  mile. 

In  the  States  of  Wyoming,  Montana,  Washington,  Oregon, 
California,  Nevada,  Idaho,  Colorado,  Utah,  New  Mexico,  and  Ari- 
zona he  will  receive  $3.00  a  day  and  15  cents  a  mile  by  stage  or 
private  conveyance  and  5  cents  a  mile  by  railroad  or  steamship. 

Q.  45.  How  are  copies  of  records  or  papers  in  the  War  De- 
partment or  at  the  headquarters  of  any  ^rmy,  division,  department, 
etc.,  authenticated! 

A.  By  the  impressed  stamp  of  the  bureau  or  office  having 
custody  of  the  originals. 


and  the  Manual  for  Courts-Martial  91 

Q.  46.  When  only  are  affidavits  admissible  as  evidence  before 
a  military  court? 

A.  Only  when  expressly  consented  to  by  the  accused  with 
full  knowledge  of  his  rights. 

Q.  46.  What  is  the  rule  in  respect  to  statement  made  by  the 
accused? 

A.  The  accused  may  make  an  oral  or  written  statement,  but 
it  should  not  be  sworn  to,  and  if  sworn  to,  it  should  not  be  received 
as  evidence  by  the  court. 

Q.  47.  In  a  case  of  virtual  acquittal,  what  is  the  correct  ex- 
pression to  be  used? 

A.  ''Find  the  facts  as  charged,  but  attach  no  criminality 
thereto."  The  term  ''guilty"  should  be  employed  only  when  the 
accused  iias  been  convicted  of  a  crime  deserving  punishment. 

Q.  48.  What  evidence  of  previous  convictions  may  be  con- 
sidered by  courts-martial? 

A.  Previous  convictions  of  offenses  within  one  year  preceding 
the  date  of  any  offense  charged  and  during  the  current  enlistment 
which  have  been  referred  to  a  court-martial  by  the  reviewing 
authority. 

Q.  48.  When  the  proof  of  previous  conviction  is  the  copy  fur- 
nished to  the  company  or  other  commander,  what  disposition  of  the 
same  should  be  made  after  triall 

A.  It  will  be  returned  to  the  company  or  other  commander 
and  a  copy  of  it  attached  to  the  record. 

Q.  49.     What  punishments  are  forbidden' 

A.  Flogging,  branding,  marking,  or  tattooing  on  the  body; 
being  required  to  carry  a  heavy  log;  imposing  extra  tours  of  guard 
duty. 

Q.  50.  What  restriction  is  placed  on  confinement  on  bread- 
and-water  diet? 

A.  It  shall  not  exceed  fourteen  days  at  a  time,  nor  be  again 
enforced  until  a  period  of  fourteen  days  has  elapsed,  nor  shall  it 
exceed  eighty-four  days  in  one  year. 

Q.  65.  By  whom  is  an  amendment  to  the  record  authorized 
to  be  made? 

A.  By  the  court  only  when  duly  reconvened  for  the  purpose, 
and,  when  made,  must  be  the  act  of  the  court  as  such. 

Q.  65.     How  are  omissions  to  the  record  supplied? 


92 


Digest  of  Davis*  Mititary  taw  of  the  U.  S. 


A.  The  page  and  line  on  which  they  occur  will  be  stated  and 
the  corrections  given  in  full.  The  original  record  will  not  be  inter- 
lined nor  altered  in  any  way? 

Q.  66.  Who  has  power  to  mitigate  the  punishment  adjudged 
by  court-martial? 

A.     The  officer  authorized  to  order  such  court-martial. 

Q.  67.     In  whom  is  the  power  to  commute  sentences  vested? 

A.     The  President  of  the  United  States. 

Q.  68.  When  may  the  United  States  Penitentiary  at  Fort 
Leavenworth,  Kansas,  be  designated  as  the  place  of  confinement? 

A.     When  the  term  of  confinement  is  more  than  one  year. 

Q.  70.  How  will  enlisted  men  who  have  been  tried  be  des- 
ignated? 

A.  Prior  to  promulgation  of  the  result,  as  *' awaiting  result 
of  trial";  those  serving  sentences  of  confinement  not  involving  dis- 
honorable discharge,  as  ''garrison  prisoners";  those  sentenced  to 
dishonorable  discharge,  as  ''military  convicts." 

Q.  70.     When  may  prisoners  be  placed  in  irons? 

A.  Pursuant  to  the  sentence  of  a  court-martial,  or  when,  in  the 
judgment  of  the  commanding  officer,  a  prisoner  is  a  desperate  or 
dangerous  character. 

Q.  71.  When  a  prisoner  is  transferred  to  another  post  for 
confinement,  what  papers  are  required  to  be  forwarded  to  the  com- 
manding officer  of  the  place  where  the  sentence  is  to  be  executed? 

A.  Discharge  papers  if  discharged,  descriptive  fist,  orders 
promulgating  and  modifying  sentences,  statement  of  conduct  while 
under  sentence  to  date  of  transfer,  amd  a  list  of  clothing  in  possession 
of  the  prisoner  when  forwarded. 

Q.  How  much  abatement  of  term  of  confinement  is  allowed 
military  convicts  for  good  conduct? 

A.  Those  serving  over  three  months  and  not  over  twelve 
months,  five  days  for  each  complete  period  of  twenty-five  days;  but 
such  abatement  in  any  case  shall  not  have  the  effect  of  reducing  the 
sentence  below  three  months. 

Those  serving  sentences  exceeding  one  year  will  be  allowed  the 
foregoing  abatement  for  the  first  year,  and  thereafter  ten  days  for 
each  complete  period  of  twenty  days. 

Q.  72.     When  does  the  term  of  confinement  begin? 


and  the  Manual  for  Courts-Martial  93 

A.  When  not  expressly  tixed  by  the  sentence,  it  begins  on  the 
date  of  the  order  promulgating  it. 

Q.  75.  ■  Who  is  the  custodian  of  the  records  of  the  proceedings 
of  all  general  courts-martial? 

A.     The  Judge- Advocate  General  of  the  Army. 

Q.  76.  Who  is  the* custodian  of  the  reports  of  cases  tried  by 
summary  courts  and  of  all  proceedings  of  special  courts-martial? 

A.     Judge-advocates  of  departments. 

Q.  78.  Who  is  the  summary  court  when  but  one  commissioned 
officer  is  present  with  a  command? 

A.  The  commanding  officer.  No  order  will  be  issued  appoint- 
ing the  court,  but  the  officer  will  enter  on  the  record  that  he  is  the 
''only  officer  present  with  the  command." 

Q.  78.  How  may  the  accused  be  tried  when  he  refuses  to 
consent  in  writing  to  trial  by  summary  court? 

A.  He  may  be  tried  either  by  general  or  special  court-martial; 
or  by  summary  court,  in  which  case  the  sentence  cannot  exceed 
confinement  and  forfeiture  for  more  than  one  month. 

Q.  79.     What  power  has  the  summary  court? 

A.  To  administer  oaths,  to  hear  and  determine  cases;  to 
adjudge  punishment. 

Q.  80.     What  is  the  procedure  of  summary  courts? 

A.  The  accused  will  be  arraigned  and  allowed  to  plead  ac- 
cording to  court-martial  practice.  When  the  accused  pleads  ''Not 
guilty,"  witnesses  will  be  sworn  and  evidence  received,  the  accused 
being  permitted  to  testify  in  his  own  behalf  and  make  a  statement, 
but  the  evidence  and  statement  will  not  be  recorded. 

Q.  81.  What  is  the  limit  of  the  punishing  power  of  summary 
courts? 

x\.  Punishment  may  be  awarded  not  to  exceed  three  months' 
confinement  and  forfeiture,  and,  in  addition  thereto,  in  the  case  of 
non-commissioned  officers,  reduction  to  the  ranks,  and,  in  the  case 
of  first-class  privates,  reduction  to  second-class  privates. 

Q.  86.  By  whom  and  when  may  a  court  of  inquiry  be  con- 
vened? 

A.  By  the  President  or  by  any  commanding  officer  upon  a 
demand  by  an  officer  or  soldier  whose  conduct  is  to  be  inquired  of. 

Q.  86.     What  is  the  jurisdiction  of  a  court  of  inquiry? 

A.     A  court  of  inquiry  is  convened  to  examine  into  the  nature 


94  Digest  of  Davis'  Military  Law  of  the  U.  S. 

of  any  transaction  of,  or  accusation  or  imputation  against,  any 
officer  or  soldier,  and  the  inquiry  is  confined  to  those  actually  in 
the  service. 

It  will  not  give  an  opinion  on  the  merits  of  the  case  unless 
ordered  to  do  so. 

Q.  87.     What  is  the  composition  of  a  court  of  inquiry? 

A.  It  shall  consist  of  one  or  more  officers,  not  exceeding  three, 
and  a  recorder.  Where  the  court  is  composed  of  two  or  more 
members  and  the  number  is  reduced  by  casualty  or  challenge,  the 
court  may  proceed  with  tne  reduced  number. 

Q.  87.  By  what  is  the  procedure  of  a  court  of  inquiry  gov- 
erned? 

A.  By  the  general  principles  of  military  law,  applying  the 
analogies  of  a  court-martial  where  they  are  applical^le. 

Q.  106.  How  should  the  dioberlience  of  the  order  of  a  contract 
surgeon,  of  a  dental  surgeon,  of  a  veterinarian,  and  a  non-commis- 
sioned officer  be  charged? 

A.  It  should  be  charged  under  the  96th  Article  of  War;  also  the 
disobedience  of  an  order  by  a  military  convict. 

Q.  135.  How  should  a  simple  neglect  to  comply  with  a  standing 
order  be  charged? 

A.  Under  the  96th  Article,  and  not  under  the  64th,  which 
implies  a  willful  defiance  of  authority. 

Q.  144.  When  any  of  the  elements  of  perjury  are  lacking,  how 
will  the  offense  be  properly  charged? 

A.     As  "false  swearing." 

Q.  146.  How  are  erasures  or  interlineations  in  the  record  au- 
thenticated? 

A.     By  the  initials  of  the  president  or  the  judge-advocate. 

Q.  146.     What  will  the  index  of  the  record  refer  to? 

A.  Everything  essential  to  the  organization  and  jurisdiction 
of  the  court;  to  the  pages  where  each  witness  was  sworn  and  re- 
called, and  the  pages  where  each  document  was  introduced. 

Q.  148.  How  will  members  and  the  judge-advocate  be  re- 
corded as  present  or  absent? 

A.     By  name. 

Q.  148.  In  the  record  of  the  proceedings  of  subsequent  pro- 
ceedings of  the  same  case,  what  is  the  form  of  words  to  be  used? 


and  the  Manual  for  Courts-Martial  95 

A.  ''Present,  all  the  members  of  the  court  and  the  judge- 
advocate." 

Q.  148.  If  a  member  is  absent  by  an  order  emanating  from 
the  convening  or  higher  authority,  how  is  this  authority  recorded? 

A.     By  giving  the  number,  date,  and  source  of  the  order. 

Q.  148.  If  a  member  is  absent  from  some  other  cause,  how 
should  the  authority  for  such  absence  be  shown? 

A.  If  absent  by  telegraphic  authority,  a  post  order,  etc.,  a 
copy  of  the  authority  should  be  appended  to  the  record;  if  absent 
sick,  a  surgeon's  certificate  of  sickness  and  inability  to  attend  will 
be  appended  to  the  record. 

Q.  150.  Should  the  signature  and  rank  of  the  officer  preferring 
the  charges  be  copied  into  the  record? 

A.     No. 

Q.  155.  How  are  documents  and  papers  made  part  of  the 
proceedings? 

A.  In  the  order  of  their  introduction,  after  the  space  left  for 
the  remarks  of  the  reviewing  authority,  and  marked  in  such  a 
manner  as  to  afford  easy  reference. 

Q.  155.  How  should  statements  of  the  accused,  or  arguments 
in  his  defense,  and  all  pleas  to  the  jurisdiction  in  bar  of  trial  or  in 
abatement,  when  in  writing,  be  authenticated? 

A.     By  the  signature  of  the  accused. 

Q.  156.  When  the  judge-advocate  records  the  findings  and 
sentence  by  the  use  of  a  typewriting  machine,  what  certificate  is 
required  immediately  after  the  authentication  of  the  record? 

A.     ''I  certify  that  I  recorded  the  findings  and  sentence  of  the 

court. , 

*'  Judge- Advocate." 

Q.  157.     What  is  done  with  the  record  when  completed? 

A.  The  judge-advocate  will  forward  it  without  delay  to  the 
convening  authority  as  an  inclosure  to  the  indorsement  of  the  judge- 
advocate  returning  the  original  charges. 

Q.  158.     How  is  a  court-martial  usually  reconvened? 

A.  By  indorsement  on  the  original  record,  returning  it  to 
the  president  of  the  court  with  the  directions  of  the  convening 
authority. 

Q.  158.     Who  should  be  present  at  a  revision? 


96  Digest  of  Davis'  Military  Law  of  the  U.  S. 

A.  At  least  five  members  of  the  court  who  acted  upon  the  trial 
must,  and  the  judge-advocate  should,  be  present. 

Q,  159.  How  will  the  record  of  revision  be  appended  to  the 
original  proceedings? 

A.  It  will  follow  them  immediately,  before  the  exhibits,  and 
the  whole  indorsed  by  the  president  of  the  court  and  forwarded  to 
the  convening  authority. 

Q.  187.     How  is  a  reporter  for  a  court-martial  paid? 

A.  On  reporter's  pay-vouchers,  properly  filled  out,  signed  by 
the  judge-advocate,  and  forwarded  to  the  quartermaster,  accom- 
panied by  copies  of  the  order  appointing  the  court. 

Q.  237.  What  abatement  of  their  terms  of  confinement  will  be 
allowed  garrison  prisoners? 

A.  When  serving  sentences  of  one  month,  five  (5)  days  for 
good  conduct;  on  sentences  exceeding  one  month  they  will  be  al- 
lowed the  foregoing  abatement  for  the  first  month  and  thereafter 
ten  (10)  days  for  each  complete  period  of  twenty  days. 

Q.  239.  Whenever  a  commanding  officer  places  an  officer  in 
arrest  without  preferring  charges,  what  report  will  he  make? 

A.  He  will  make  a  written  report  of  his  action  to  the  depart- 
ment commander.  In  case  of  officers  belonging  to  a  brigade  or 
Coast  Artillery  district,  the  report  will  be  made  to  the  Coast  Ar- 
tillery district  commander,  who  will  call  upon  the  officer  for  any 
explanation  he  may  desire  to  make,  and  take  such  other  action 
within  his  authority  as  he  may  tnink  necessary,  forwarding  the 
papers  to  the  department  commander. 

Q.  241.  When  a  military  commander  is  the  accuser  or  the 
prosecutor  of  the  person  or  persons  to  be  tried  by  a  court-martial 
ordered  by  him,  by  whom  shall  such  court  be  appointed? 

A.     By  superior  competent  authority. 

Q.  241.  When  are  officers  not  eligible  to  sit  as  members  of  a 
court-martial? 

A.  No  officer  shall  be  eligible  to  sit  as  a  member  of  such  court 
when  he  is  the  accuser  or  a  material  witness  for  the  prosecution. 

Q.  243.  Whose  decision  is  final  as  to  whether  or  not  the  ac- 
cused should  be  tried  by  special  or  summary  court-martial? 

A.  That  of  the  officer  exercising  special  court-martial  jurisdic- 
tion over  the  command  to  which  the  accused  belongs. 


and  the  Manual  for  Courts-Martial  97 

Q.  243.  What  information  should  be  included  in  the  com- 
manding officer's  indorsement  forwarding  charges? 

A.  The  name  of  the  officer  investigating  the  case,  and  a  state- 
ment as  to  whether  or  not,  in  his  opinion,  the  charges  can  be 
sustained. 

Q.  244.  "What  evidence  of  previous  convictions  will  be  con- 
sidered by  general  and  special  courts-martial? 

A.  Only  such  as  are  referred  to  them  by  the  convening 
authority. 

Q.  244.  Who  will  detail  a  counsel  for  any  person  who  is  to 
be  tried  by  a  general  or  special  court-martial? 

A.  The  commanding  officer  of  the  post  where  such  court  is 
convened,  will  detail  a  suitable  officer  as  counsel  for  the  defense.  If 
there  be  no  such  officer  available,  that  fact  will  be  reported  to  the 
authority  appointing  the  court  for  his  action. 

Q.  245.  What  in  general  are  the  duties  of  a  counsel  for  a 
soldier  before  a  general  or  a  special  court-martial? 

A.  He  should  guard  the  interests  of  the  accused  by  all  hon- 
orable and  legitimate  means  known  to  law,  in  so  far  as  they  are  not 
inconsistent  with  military  relations.  He  should  not  obstruct  the 
proceedings  with  frivolous  and  manifestly  useless  objections. 

Q.  246.  How  much  time  is  allowed  the  reporter  to  furnish  the 
typewritten  record  of  the  proceedings  of  each  session  of  the  court? 

A.  Not  later  than  twenty-four  hours  after  the  adjournment 
of  that  session.  The  complete  record  will  be  finished  and  ready  for 
authentication  not  later  than  forty-eight  hours  after  the  completion 
of  its  action  by  the  court. 

Q.  246.  What  extra  pay  is  allowed  an  enlisted  man  detailed 
to  ser\^e  as  a  stenographic  reporter? 

A.  Not  to  exceed  five  cents  for  each  100  words  taken  in  short- 
hand and  transcribed.  No  person  in  the  miUtary  or  civil  service 
can  lawfully  receive  extra  compensation  for  clerical  duties  per- 
formed for  a  military  court,  except  as  above  stated. 

Q.  247.  How  only  can  a  member  not  challenged,  but  who 
thinks  himself  disquahfied,  be  relieved  from  sitting  on  the  trial  of 
a  case? 

A.  By  application  to  the  convening  authority ;  except  where  a 
member  who  is  or  believes  himself  to  be  the  accuser  in  the  case, 
when  he  will  formally  announce  that  fact  to  the  court,  after  the  ac- 


98  Digest  of  Davis'  Military  Law  of  the  U.  S. 

ciised  is  brought  before  the  court  and  before  the  court  is  sworn, 
whereupon  he  will  be  excused. 

Q.  247.  Under  what  other  circumstances  may  a  member  be 
excused? 

A.  When  the  accused,  his  counsel,  the  judge-advocate,  or  any 
member  of  the  court,  at  any  time  before^'the  finding,  shall  have 
reason  to  believe  that  any  member  thereof  may  be  the  accuser  or 
may  be  a  witness  for  the  prosecution,  such  belief  shall  be  commu- 
nicated to  the  court,  and  if  the  court,  after  hearing  the  facts,  find 
that  such  member  is  the  accuser  or  a  witness  for  the  prosecution,  he 
shall  be  excused. 

No  member  who  has  been  absent  during  the  taking  of  evidence 
shall  thereafter  take  part  in  the  trial. 

Q.  248.  What  is  the  procedure  when  a  civihan  witness  duly 
subpirnaed  before  a  general  court-martial  refuses  to  appear  or 
quahfy  as  a  witness? 

A.  He  will  at  once  be  tendered  or  paid  by  the  nearest  pay- 
master one  day's  fee  and  mileage  for  the  journeys  to  and  from  the 
court,  and  will  thereupon  be  again  called  upon  to  comply  with  the 
requirements  of  the  law.  The  fees  and  mileage  of  civilian  wit- 
nesses residing  beyond  the  limits  of  the  State  in  which  the  court- 
martial  is  held  will  not  be  paid  in  advance,  as  such  witnesses  cannot 
be  punished  if  they  refuse  to  obey  the  summons. 

Q.  248.  To  whom  will  the  judge-advocate  forward  the  inter- 
rogatories for  a  deposition  in  the  case  of  a  military  or  civilian  witness 
not  stationed  or  residing  at  or  near  a  post,  command,  or  detachment? 

A.  To  the  commanding  general  of  the  department  in  which 
the  witness  resides. 

Q.  249.  To  whom  will  the  interrogatories  be  forwarded  when 
the  witness  resides  at  or  near  a  military  post,  command,  or  de- 
tachment? 

A.  Direct  to  the  commanding  officer  of  the  post,  command, 
or  detachment. 

Q.  249.  In  the  case  of  a  civilian  witness,  what  will  accompany 
the  interrogatories? 

A.  The  proper  subpoenas  and  account  for  a  civilian  witness 
and  a  request  that  the  proper  data  be  supplied  in  the  account  for 
civilian  witness  and  that  the  post-office  address  of  the  witness  be. 


and  the  Manual  for  Courts-Martial  99 

given,  so  that  the  account  may  be  certified  by  the  judge-advocate 
and  transmitted  to  the  proper  paymaster  for  payment. 

Q.  252.  How  does  the  record  of  a  special  court-martial  differ 
from  that  of  a  general  court? 

A.  In  the  record  of  a  special  court-martial  statements  and 
arguments  made  before  the  court  will  not  be  recorded,  nor  will  the 
testimony  taken  before  such  court  be  reduced  to  writing  unless 
directed  by  the  authority  referring  the  case  to  the  court  for  trial. 

Q.  256.  How  many  officers  may  a  special  court-martial  con- 
sist of? 

A.  Any  number  from  three  to  five,  inclusive,  and  a  judge- 
advocate. 

Q.  257.  What  is  the  extent  of  jurisdiction  of  special  courts- 
martial? 

A.  They  have  power  to  try  any  person  subject  to  military  law, 
except  officers  and  candidates  for  promotion,  for  any  crime  or 
offense  not  capital  made  punishable  by  the  Articles  of  War. 

Q.  257.  What  is  the  limit  of  punishing  power  of  special 
courts-martial? 

A.  They  have  power  to  adjudge  punishment  not  to  exceed 
six  months'  forfeiture  and  confinement,  and,  in  addition  thereto, 
reduction  to  the  ranks  in  cases  of  non-commissioned  officers,  and  re- 
duction in  classification  in  the  cases  of  first-class  privates. 


and  the  Manual  for  Courts-Martial  101 


Questions  and  Answers  on  General  Order 
No.  70,  War  Department,  1914. 

Q.  1.     In  cases  of  desertion,  what  may  the  sentence  be? 
A.     Dishonorable  discharge  and  forfeiture  of  all  pay  and  al- 
lowances due  and  to  become  due. 

Q.  1.     What  is  the  limit  of  the  term  of  confinement  for  deser- 
tion in  case  of  surrender? 

A.     (a)  When  the  deserter  surrenders  himself  after  an  absence 
of  not  more  than  thirty  days,  one  year. 
(6)  When  the  surrender  is  made  after  an  absence  of  more 
than  thirty  days,  eighteen  months. 
Q.  1.     In  case  of  apprehension? 

A.     (a)  When  at  the  time  of  desertion  the  deserter  shall  not 
have  been  more   than   six  months  in  the  service, 
eighteen  months. 
(h)  When  he  shall  have  been  more  than  six  months  in  the 
service,  two  and  one-half  years. 
Q.  6.     What  substitutions  for  punishments  mentioned  in  this 
order  are  authorized? 

A.     Forfeiture  of  one  day's  pay  for  confinement  at  hard  labor 
for  one  day,  or  the  reverse. 

Q.  6.  What  may  the  court  adjudge  in  lieu  of  forfeiture  of  pay? 
A.  It  may  adjudge  detention  of  pay  at  the  rate  of  detention 
of  one  and  one-half  day's  pay  for  each  day  of  pay  the  forfeiture  of 
which  is  authorized;  but  no  sentence  shall  adjudge  the  detention 
of  more  than  two-thirds  of  the  soldier's  pay  per  month  for  three 
months. 

Q.  6.     What  may  the  court  adjudge  in  lieu  of  confinement  at 
hard  labor? 

A.     Hard  labor  without  confinement  at  the  rate  of  one  and  one-  • 
half  days  of  hard  labor  without  confinement  for  each  day  of  con- 
finement at  hard  labor  authorized;  but  no  sentence  shall  adjudge 


102  Digest  of  Davis  Military  Law  of  the  U.  S. 

hard  labor  without  confinement  for  a  greater  period  than  three 
months. 

Q.  6.  What  is  the  limit  of  detention  or  forfeiture  that  may  be 
adjudged  against  a  soldier  who  is  retained  in  the  service? 

A.  Detention  or  forfeiture  of  more  than  two-thirds  of  his  pay 
for  any  one  month  shall  not,  by  a  single  sentence,  be  adjudged 
against  a  soldier  who  is  retained  in  the  service,  except  when  such 
retention  is  under  a  suspended  sentence  of  dishonorable  discharge. 

Q.  7.  When  may  a  soldier  be  sentenced  to  dishonorable  dis- 
charge when  convicted  of  an  offense  for  which  dishonorable  discharge 
is  not  authorized? 

A.     Upon  proof  of  five  previous  convictions. 

Q.  7.  What  is  the  effect  of  pay  detained  pursuant  to  the  sen- 
tence of  a  court-martial? 

A.  It  will  be  detained  by  the  Government  until  the  soldier  is 
discharged  from  his  current  enlistment,  at  which  time  the  authority 
for  the  detention  and  the  amount  thereof  will  be  noted  on  the  final 
statement  and  the  amount  detained  paid  to  him  out  of  the  appro- 
priation for  the  pay  of  the  Army. 

Q.  11.  Enumerate  the  punishments  in  order  of  their  severity. 
-    A.     (a)  Detention  of  pay; 

(b)  Forfeiture  of  pay; 

(c)  Reduction; 

(d)  Hard  labor  without  confinement; 

(e)  Confinement  at  hard  labor; 
(/)  Dishonorable  discharge. 

Q.  15.  What  explanation  should  be  made  by  the  president  of 
the  court  when  the  accused  enters  a  plea  of  '^uilt}^"  in  a  case  tried 
by  a  general  court-martial;  and  in  a  case  tried  by  special  court- 
martial,  when  the  evidence  is  reduced. to  writing? 

A.  It  shall  appear  of  record  that  the  meaning  of  his  plea  and 
the  extent  of  his  punishment  was  adequately  explained  to  the  ac- 
cused, and  that  the  accused  was,  after  such  explanation,  asked  if  he 
desires  to  have  the  plea  of  ''guilty"  stand.  If  he  replies  in  the  af- 
firmative, the  plea  of  "guilty"  will  stand;  otherwise,  a  plea  of  ''not 
guilty"  will  be  entered. 

Q.  15.  What  is  the  rule  in  each  case  tried  by  a  general  court- 
martial,  or  by  a  special  court-martial  when  the  evidence  is  reduced 


and  the  Manual  for  Courts-Martial  103 

to  writing,  when  the  accused  does  not  testify  or  make  any  state- 
ment in  his  behalf? 

A.  It  shall  appear  of  record  that  the  president  of  the  court 
explained  to  the  accused  that  he  may  testify  in  his  own  behalf  if  he 
so  desire,  or  make  a  statement  to  the  court  in  denial,  in  explanation, 
or  in  extenuation  of  the  offense  with  which  he  stands  charged. 

Q.  16.  How  are  recommendations  to  clemency  by  a  court- 
martial,  or  any  member  thereof,  submitted? 

A.  Such  recommendations  will  be  signed  by  each  member  of 
the  court  desiring  to  participate  therein.  The  communication  car- 
rying the  recommendation  will  include  a  statement  in  succinct  form 
of  the  reasons  upon  which  tne  recommendation  is  based  and  will  be 
appended  to  the  record  of  trial. 

Q.  16.  What  reports  are  required  to  be  made  by  trial  judge- 
advocates? 

A.  On  Saturday  of  each  week  he  will  report,  through  the  pres- 
ident of  the  court  and  the  post  commander,  to  the  convening  au- 
thority, a  list  of  charges  on  hand,  showing  the  date  of  receipt  of  each; 
and  if  any  case  has  been  in  the  hands  of  the  judge-advocate  for  one 
week  or  more  and  the  record  of  trial  has  not  been  forwarded,  the 
report  will  include  a  statement  of  the  reasons  for  the  delay. 

Q.  17.  What  rules  will  be  observed  when  the  accused  is  an 
enlisted  man  and  without  counsel? 

A.  In  so  far  as  such  action  may  be  taken  without  prejudice  to 
the  rights  of  the  accused,  any  advice  given  him  by  the  judge-advo- 
cate should  be  given  or  repeated  in  open  court;  and  in  any  case  in 
which  the  accused  has  been  advised  by  the  judge-advocate,  that 
fact  and  the  general  nature  of  the  advice  will  be  noted  upon  the 
record  of  trial. 


and  the  Manual  for  Courts-Martial  105 


The  Revised  Articles  of  War. 


(Revised  August  29,  1916.) 

Section  1842.  The  articles  included  in  this  section  shall  be 
known  as  the  Articles  of  War  and  shall  at  all  times  and  in  all  places 
govern  the  armies  of  the  United  States. 

I.     Preliminary  Provisions. 
Article  1.     Definitions. — The  following  words  when  used  in 
these  articles  shall  be  construed  in  the  sense  indicated  in  this  article, 
unless  the  context  shows  that  a  different  sense  is  intended,  namely: 
(a)  The  word  '' officer"  shall  be  construed  to  refer  to  a  com- 
missioned officer; 
{h)  The  word  ^^soldier"  shall  be  construed  as  including  a  non- 
commissioned officer,  a  private,   or  any  other  enlisted 
man; 
(c)  The  word  ^'company"  shall  be  understood  as  including  a 

troop  or  battery;  and 
{d)  The  word  ^'battalion"  shall  be  understood  as  including  a 

squadron. 
Art.  2.  Persons  Subject  to  Military  Law. — The  following  per- 
sons are  subject  to  these  articles  and  shall  be  understood  as  included 
in  the  term  ^'any  person  subject  to  military  law,''  or  ^'persons 
subject  to  military  law,"  whenever  used  in  these  articles:  Provided, 
That  nothing  contained  in  this  act,  except  as  specifically  provided 
in  Article  2,  subparagraph  (c),  shall  be  construed  to  apply  to  any 
person  under  the  United  States  naval  jurisdiction,  unless  otherwise 
specifically  provided  by  law : 

(a)  All  officers  and  soldiers  belonging  to  the  Regular  Army  of 
the  United  States;  all  volunteers  from  the  dates  of  their 
muster  or  acceptance  into  the  military  service  of  the 
United  States;  and  all  other  persons  lawfully  called, 
drafted,  or  ordered  into,  or  to  duty  or  for  training  in,  the 


106  Digest  of  Davis'  Military  Law  of  the  17.  S. 

said  service,  from  the  dates  they  are  required  by  the  terms 
of  the  call,  draft,  or  order  to  obey  the  same; 
(h)  Cadets; 

(c)  Officers  and  soldiers  of  the  Marine  Corps  when  detached 

for  service  with  the  armies  of  the  United  States  by  order 
of  the  President:  Provided,  That  an  officer  or  soldier  of 
the  Marine  Corps  when  so  detached  may  be  tried  by 
military  court-martial  for  an  offense  committed  against 
the  laws  for  the  government  of  the  naval  service  prior  to 
his  detachment,  and  for  an  offense  committed  against 
these  articles  he  may  be  tried  by  a  naval  court-martial 
after  such  detachment  ceases; 

(d)  All  retainers  to  the  camp  and  all  persons  accompanying  or 

serving  with  the  armies  of  the  United  States  without  the 
territorial  jurisdiction  of  the  United  States,  and  in  time 
of  war  all  such  retainers  and  persons  accompanying  or 
serving  with  the  armies  of  the  United  States  in  the  field, 
both  within  and  without  the  territorial  jurisdiction  of  the 
United  States,  though  not  otherwise  subject  to  these 
articles; 

(e)  All  persons  under  sentence  adjudged  by  courts-martials; 
(/)  All  persons  admitted  into  the  Regular  Army  Soldiers'  Home 

at  Washington,  District  of  Columbia. 

11.     Courts-Martial, 
Art.  3.     Courts-Martial  Classified. — Courts-martial  shall  be  of 
three  kinds — namely:   first,  general  courts-martial;  second,  special 
courts-martial;  and  third,  summary  courts-martial. 

(a)       COMPOSITION. 

Art.  4.  *Who  May  Serve  on  Courts-Manial. — All  officers  in 
the  military  service  of  the  United  States,  and  officers  of  the  Marine 
Corps  when  detached  for  service  with  the  Army  by  order  of  the 
President,  shall  be  competent  to  serve  on  courts-martial  for  the  tria 
of  any  persons  who  may  lawfully  be  brought  before  such  courts! 
for  trial. 

Art.  5.  General  Courts-Martial. — General  courts-m.artial  may 
consist  of  any  number  of  officers  from  five  to  thirteen,  inclusive; 

*Article8  marked  *  are  effective  immediately.     See  Section  4. 


and  the  Manual  for  Courts-Martial  107 

but  they  shall  not  consist  of  less  than  thirteen,  when  that  number 
can  be  convened  without  manifest  injury  to  the  service. 

Art.  6.  Special  Courts-Martial. — Special  courts-martial  may 
consist  of  any  number  of  officers  from  three  to  five,  inclusive. 

Art.  7.  Summary  Courts-Martial. — A  summary  court-martial 
shall  consist  of  one  oflficer. 

(h)       BY  WHOM  APPOI'NTED. 

Art.  8.  General  Courts-Martial. — The  President  of  the  United 
States,  the  commanding  officer  of  a  territorial  division  or  department, 
the  Superintendent  of  the  Military  Academy,  the  commanding  of- 
ficer of  an  army,  an  army  corps,  a  division,  or  a  separate  brigade, 
and,  when  empowered  by  the  President,  the  commanding  officer  of 
any  district  or  of  any  force  or  body  of  troops,  may  appoint  general 
courts-martial;  but  when  any  such  commander  is  the  accuser  or  the 
prosecutor  of  the  person  or  persons  to  be  tried,  the  court  shall  be 
appointed  by  superior  competent  authority,  and  no  officer  shall  be 
eligible  to  sit  as  a  member  of  such  court  when  he  is  the  accuser  or  a 
witness  for  the  prosecution. 

Art.  9.  Special  Courts  -  Martial.  —  The  commanding  officer 
of  a  district,  garrison,  fort,  camp,  or  other  place  where  troops  are  on 
duty,  and  the  commanding  officer  of  a  brigade,  regiment,  detached 
battalion,  or  other  detached  command,  may  appoint  special  courts- 
martial;  but  when  any  such  commanding  officer  is  the  accuser  or  the 
prosecutor  of  the  person  or  persons  to  be  tried,  the  court  shall  be 
appointed  by  superior  authority,  and  may  in  any  case  be  appointed 
by  superior  authority  when  by  the  latter  deemed  desirable;  and  no 
officer  shall  be  eligible  to  sit  as  a  member  of  such  court  when  he  is 
the  accuser  or  a  witness  for  the  prosecution. 

Art.  10.  Summary  Courts-Martial. — The  commanding  officer 
of  a  garrison,  fort,  camp,  or  other  place  where  troops  are  on  duty, 
and  the  commanding  officer  of  a  regiment,  detached  battalion,  de- 
tached company,  or  other  detachment,  may  appoint  summary 
courts-martial;  but  such  summary  courts-martial  may  in  any  case 
be  appointed  by  superior  authority  when  by  the  latter  deemed  de- 
sirable: Provided,  That  when  but  one  officer  is  present  with  a 
command,  he  shall  be  the  summary  court-martial  of  that  command 
and  shall  hear  and  determine  cases  brought  before  him. 

Art.  11.     Appointment  of  Judge- Advocates. — For  each  general 


108  Digest  of  Davis'  Military  Law  of  the  U.  S. 

or  special  court-martial,  the  authority  appointing  the  court  shall 
appoint  a  judge-advocate,  and  for  each  general  court-martial  one 
or  more  assistant  judge-advocates  when  necessary. 

(c)       JURISDICTION. 

Art.  12.  General  Courts  -  Martial. — General  courts-martial 
shall  have  power  to  try  any  person  subject  to  military  law  for  any 
crime  or  offense  made  punishable  by  these  articles  and  any  other 
person  who  by  the  law  of  war  is  subject  to  trial  by  military  tribunals: 
Provided,  That  no  officer  shall  be  brought  to  trial  before  a  general 
court-martial  appointed  by  the  Superintendent  of  the  Military 
Academy. 

Art.  13.  *Special  Courts  -  Martial.  —  Special  courts  -  martial 
shall  have  power  to  try  any  person  subject  to  military  law,  except 
an  officer,  for  any  crime  or  offense  not  capital  made  punishable  by 
these  articles:  Provided,  That  the  President  may,  by  regulations, 
which  he  may  modify  from  time  to  time,  except  from  the  jurisdiction 
of  special  courts-martial  any  class  or  classes  of  persons  subject  to 
military  law. 

Special  courts-martial  shall  not  have  power  to  adjudge  dis- 
honorable discharge,  nor  confinement  in  excess  of  six  months,  nor 
to  adjudge  forfeiture  of  more  than  six  months'  pay. 

Art.  14.  *Summary  Courts  -  Martial.  —  Summary  courts- 
niartial  shall  have  power  to  try  any  person  subject  to  military  law, 
except  an  officer,  a  cadet,  or  a  soldier  holding  the  privilege  of  a 
certificate  of  eligibility  to  promotion,  for  any  crime  or  offense  not 
capital  made  punishable  by  these  articles:  Provided,  That  non- 
commissioned officers  shall  not,  if  they  object  thereto,  be  brought  to 
trial  before  a  summary  court-martial  without  the  authority  of  the 
officer  competent  to  bring  them  to  trial  before  a  general  court- 
martial:  Provided  further.  That  the  President  may,  by  regulations, 
which  he  may  modify  from  time  to  time,  except  from  the  jurisdiction 
of  summary  courts-martial  any  class  or  classes  of  persons  subject 
to  military  law. 

Summary  courts-martial  shall  not  have  power  to  adjudge  con- 
finement in  excess  of  three  months,  nor  to  adjudge  the  forfeiture  of 
more  than  three  months'  pay:  Provided,  That  when  the  summary 
court  officer  is  also  the  commanding  officer,  no  sentence  of  such  sum- 
mary  court-martial  adjudging  confinement  at  hard  labor  or  forfeiture 

*Effective  immediately. 


and  the  Manual  for  Courts-Martial  109 

of  pay,  or  both,  for  a  period  in  excess  of  one  month  shall  be  carried 
into  execution  until  the  same  shall  have  been  approved  by  superior 
authority. 

Art.  15.  *Not  Exclusive. — The  provisions  of  these  articles  con- 
ferring jurisdiction  upon  courts-martial  shall  not  be  construed  as 
depriving  military  commissions,  provost  courts,  or  .other  military 
tribunals  of  concurrent  jurisdiction  in  respect  to  offenders  or  offenses 
that  by  the  law  of  war  may  be  lawfully  triable  by  such  military  com- 
missions, provost  courts,  or  other  military  tribunals. 

Art.  16.  Officers;  How  Triable. — Officers  shall  be  triable  only 
by  general  courts-martial,  and  in  no  case  shall  an  officer,  when  it  can 
be  avoided,  be  tried  by  officers  inferior  to  him  in  rank. 

(d)       PROCEDURE. 

Art.  17.  Judge-Advocate  to  Prosecute. — The  judge-advocate 
of  a  general  or  special  coiirt-martial  shall  prosecute  in  the  name  of 
the  United  States,  and  shall,  under  the  direction  of  the  court,  prepare 
the  record  of  its  proceedings.  The  accused  shall  have  the  right  to 
be  represented  before  the  court  by  counsel  of  his  own  selection  for 
his  defense,  if  such  counsel  be  reasonably  available,  but  should  he, 
for  any  reason,  be  unrepresented  by  counsel,  the  judge-advocate 
shall  from  time  to  time  throughout  the  proceedings  advise  the  ac- 
cused of  his  legal  rights. 

Art.  18.  Challenges. — Members  of  a  general  or  special  court- 
martial  may  be  challenged  by  the  accused,  but  only  for  cause  stated 
to  the  court.  The  court  shall  determine  the  relevancy  and  vaKdity 
taereof,  and  shall  not  receive  a  challenge  to  more  than  one  member 
at  a  time. 

Art.  19.  Oaths. — The  judge-advocate  of  a  general  or  special 
court-martial  shall  administer  to  the  members  of  the  court,  before 
they  proceed  UDon  any  trial,  the  following  oath  or  affirmation: 
''You,  A.  B.,  do  swear  (or  affirm)  that  you  will  well  and  tridy  try 
and  determine,  according  to  the  evidence,  the  matter  now  before 
you,  between  the  United  States  of  America  and  the  person  to  be 
tried,  and  that  you  will  auly  administer  justice,  without  partiality, 
favor,  or  affection,  according  to  the  provisions  of  the  rules  and  ar- 
ticles for  the  government  of  the  armies  of  the  United  States,  and  if 
any  doubt  should  arise,  not  explained  by  said  articles,  then  according 
to  your  conscience,  the  best  of  your  understanding,  and  the  custom 
*E£fective  immediately. 


110  Digest  of  Davis'  Military  Law  of  the  U.  S. 

of  war  in  like  cases;  and  you  do  further  swear  (or  affirm)  that  you 
will  not  divulge  the  findings  or  sentence  of  the  court  until  they  shall 
be  published  by  the  proper  authority/,  except  to  the  judge-advocate 
and  assistant  judge-advocate;  neither  will  you  disclose  or  discover 
the  vote  or  opinion  of  any  particular  member  of  the  court-martial, 
unless  required  to  give  evidence  thereof  as  a  witness  by  a  court  of 
justice  in  due  course  of  law.     So  help  you  God." 

When  the  oath  or  affirmation  has  been  administered  to  the 
members  of  a  general  or  special  court-martial,  the  president  of  the 
court  shall  administer  to  the  judge-advocate  and  to  each  assistant 
judge-advocate,  if  any,  an  oath  or  affirmation  in  the  following  form : 
"You,  A.  B.,  do  swear  (or  affirm)  that  you  will  not  divulge  the 
findings  or  sentence  of  the  court  to  any  but  the  proper  authority 
until  they  shall  be  duly  disclosed  by  the  same.     So  help  you  God." 

All  persons  who  give  evidence  before  a  court-martial  shall  be 
examined  on  oath  or  affirmation  in  the  following  form :  ''You  swear 
(or  affirm)  that  the  evidence  you  shall  give  in  the  case  now  in  hearing 
shall  be  the  truth,  the  whole  truth,  and  nothing  but  the  truth.  So 
help  you  God." 

Every  reporter  of  the  proceedings  of  a  court-martial  shall,  be- 
fore entering  upon  his  duties,  make  oath  or  affirmation  in  the  fol- 
lowing form:  "You  swear  (or  affirm)  that  you  will  faithfully  per- 
form the  duties  of  reporter  to  this  court.     So  help  you  God." 

Every  interpreter  in  the  trial  of  any  case  before  a  court-martial 
shall,  before  entering  upon  his  duties,  make  oath  or  affirmation  in 
the  following  form:  "You  swear,  (or  affirm)  that  you  will  truly  in- 
terpret in  the  case  now  in  hearing.     So  help  you  God." 

In  case  of  affirmation,  the  closing  sentence  of  adjuration  will 
be  omitted. 

Art.  20.  Continuances. — A  court-martial  may,  for  reasonable 
cause,  grant  a  continuance  to  either  party  for  such  time  and  as  often 
as  may  appear  to  be  just. 

Art.  21.  Refusal  to  Plead. — When  the  accused,  arraigned  be- 
fore a  court-martial,  from  obstinacy  and  deliberate  design,  stands 
mute  or  answers  foreign  to  the  purpose,  the  court  may  proceed  to 
trial  and  judgment  as  if  he  had  pleaded  "not  guilty." 

Art.  22.  Process  to  Obtain  Witnesses.  —  Every  judge- 
advocate  of  a  general  or  special  court-martial  and  every  summary 
court-martial  shall  have  power  to  issue  the  like  process  to  compel 


and  the  Manual  for  Courts-Martial  111 

witnesses  to  appear  and  testify  which  courts  of  the  United  States, 
having  criminal  jurisdiction,  may  lawfully  issue;  but  such  process 
shall  run  to  any  part  of  the  United  States,  its  territories  and 
possessions. 

Art.  23.  Refusal  to  Appear  or  Testify. — Every  person  not  sub- 
ject to  military  law  who,  being  duly  subpoenaed  to  appear  as  a  witness 
before  any.  military  court,  commission,  court  of  inquiry,  or  board, 
or  before  any  officer,  military  or  civil,  designated  to  take  a  deposition 
to  be  read  in  evidence  before  such  court,  commission,  court  of  in- 
quiry, or  board,  willfully  neglects  or  refuses  to  appear,  or  refuses  to 
qualify  as  a  witness,  or  to  testify,  or  produce  documentary  evidence 
which  such  person  may  have  been  legally  subpoenaed  to  produce, 
shall  be  deemed  guilty  of  a  misdemeanor,  for  which  such  person 
shall  be  punished  on  information  in  the  district  court  of  the  tlnited 
States  or  in  a  court  of  original  criminal  jurisdiction  in  any  of  the 
territorial  possessions  of  the  United  States,  jurisdiction  being  hereby 
conferred  upon  such  courts  for  such  purpose;  and  it  shall  be  the  duty 
of  the  United  States  district  attorney  or  the  officer  prosecuting  for  the 
Government  in  any  such  court  of  original  criminal  jurisdiction,  on  the 
certification  of  the  facts  to  him  by  the  military  court,  commission, 
court  of  inquiry,  or  board,  to  file  an  information  against  and  prose- 
cute the  person  so  offending,  and  the  punishment  of  such  person,  on 
conviction,  shall  be  a  fine  of  not  more  than  $500  or  imprisonment 
not  to  exceed  six  months,  or  both,  at  the  discretion  of  the  court: 
Provided,  That  the  fees  of  such  witness  and  his  mileage,  at  the  rates 
allowed  to  witnesses  attending  the  courts  of  the  United  States,  shall 
be  duly  paid  or  tendered  said  witness,  such  amounts  to  be  paid  out 
of  the  appropriation  for  the  compensation  of  witnesses. 

Art.  24.  Compulsory  Self-incrimination  Prohibited. — No  wit- 
ness before  a  military  court,  commission,  court  of  inquiry,  or  board, 
or  before  any  officer,  military  or  civil,  designated  to  take  a  deposi- 
tion to  be  read  in  evidence  before  a  military  court,  commission, 
court  of  inquiry,  or  board,  shall  be  compelled  to  incriminate  him- 
self or  to  answer  any  questions  which  may  tend  to  incriminate 
or  degrade  him. 

Art.  25.  Depositions — When  Admissible. — A  duly  authenti- 
cated deposition  taken  upon  reasonable  notice  to  the  opposite  party 
may  be  read  in  evidence  before  any  military  court  or  commission  in 
any  case  not  capital,  or  in  any  proceeding  before  a  court  of  inquiry 


Il2  Digest  of  Davis'  Military  Law  of  the  U.  S. 

or  a  military  board,  if  such  deposition  be  taken  when  the  witness 
resides,  is  found,  or  is  about  to  go  beyond  the  State,  Territory,  or 
District  in  which  the  court,  commission,  or  board  is  ordered  to  sit,  or 
beyond  the  distance  of  one  hundred  miles  from  the  place  of  trial  or 
hearing,  or  when  it  appears  to  the  satisfaction  of  the  court,  commis- 
sion, board,  or  appointing  authority  that  the  witness,  by  reason  of 
age,  sickness,  bodily  infirmity,  imprisonment,  or  other  reasonable 
cause,  is  unable  to  appear  and  testify  in  person  at  the  place  of  trial 
or  hearing:  Provided,  That  testimony  by  deposition  may  be  ad- 
duced for  the  defense  in  capital  cases. 

Art.  26.  Depositions — ^Before  Whom  Taken. — Depositions  to 
be  read  in  evidence  before  military  courts,  commissions,  courts  of 
inquiry,  or  military  boards,  or  for  other  use  in  military  administra- 
tion, may  be  taken  before  and  authenticated  by  any  officer,  mihtary 
or  civil,  authorized  by  the  laws  of  the  United  States  or  by  the  laws 
of  the  place  where  the  deposition  is  taken  to  administer  oaths. 

Art.  27.  Courts  of  Inquiry — Records  of,  When  Admissible. — 
The  record  of  the  proceedings  of  a  court  of  inquiry  may  be  read  in 
evidence  before  any  court-martial  or  military  commission  in  any 
case  not  capital  nor  extending  to  the  dismissal  of  an  officer,  and  may 
also  be  read  in  evidence  in  any  proceeding  before  a  court  of  inquiry 
or  a  military  board:  Provided,  That  such  evidence  may  be  ad- 
duced by  the  defense  in  capital  cases  or  cases  extending  to  the 
dismissal  of  an  officer. 

Art.  28.  Resignation  without  Acceptance  Does  Not  Release 
Officer. — Any  officer  who,  having  tendered  his  resignation  and  prior 
to  due  notice  of  the  acceptance  of  the  same,  quits  his  post  or  proper 
duties  without  leave  and  with  intent  to  absent  himself  permanently 
therefrom  shall  be  deemed  a  deserter. 

Art.  29.  *Enlistment  without  Discharge.  —  Any  soldier  who, 
without  having  first  received  a  regular  discharge,  again  enlists  in 
the  Army,  or  in  the  militia  when  in  the  service  of  the  United  States, 
or  in  the  Kavy  or  Marine  Corps  of  the  United  States,  or  in  any 
foreign  army,  shall  be  deemed  to  have  deserted  the  service  of  the 
United  States;  and,  where  the  enlistment  is  in  one  of  the  forces 
of  the  United  States  mentioned  above,  to  have  fraudulently  on- 
listed  therein. 

Art.  30.  Closed  Sessions.-  Whenever  a  general  or  special 
court-martial  shall  sit  in  closed  session,  the  judge-advocate  and  the 
♦Effective  immediately. 


and  the  Manual  for  Courts-Martial  113 

assistant  judge-advocate,  if  any,  shall  withdraw;  and  when  their 
legal  advice  or  tl  eir  assistance  in  referring  to  the  recorded  evidence 
is  required,  it  s  lall  be  obtained  in  open  court,  and  in  the  presence 
of  the  accused  and  of  his  counsel,  if  there  be  any. 

Art.  81.  Order  of  Voting, — Members  of  a  general  or  special 
court-martial,  in  giving  their  votes,  shall  begin  with  the  junior 
in  rank. 

Art.  32.  Contempts. — A  court-martial  may  punish  at  discre- 
tion, subject  to  the  limitations  contained  in  Article  14,  any  person 
who  uses  any  menacing  words,  signs,  or  gestures  in  its  presence,  or 
who  disturbs  its  proceedings  by  any  riot  or  disorder. 

Art.  33.  Records  —  General  Court  -  Martial. — Each  general 
court-martial  shall  keep  a  separate  record  of  its  proceedings  in  the 
trial  of  each  case  brought  before  it,  and  such  record  shall  be  authen- 
ticated by  the  signature  of  the  president  and  the  judge-advocate; 
but  in  case  the  record  cannot  be  authenticated  by  the  judge-advocate 
by  reason  of  his  death,  disability,  or  absence,  it  shall  be  signed  by 
the  president  and  an  assistant  judge-advocate,  if  any;  and  if  there 
be  no  assistant  judge-advocate,  or  in  case  of  his  death,  disability,  or 
absence,  then  by  the  president  and  one  other  member  of  the  court. 

Art.  34.  Records — Special  and  Summary  Courts-Martial. — 
Each  special  court-martial  and  each  summary  court-martial  shall 
keep  a  record  of  its  proceedings,  separate  for  each  case,  which  record 
shall  contain  such  matter  and  be  authenticated  in  such  manner  as 
may  be  required  by  regulations  which  the  President  may  from  time 
to  time  prescribe. 

Art.  35,  Disposition  of  Records — General  Courts-Martial. — 
The  judge-advocate  of  each  general  court-martial  shall,  with  such 
expedition  as  circumstances  may  permit,  forward  to  the  appointing 
authority  or  to  his  successor  in  command  the  original  record  of  the 
proceedings  of  such  court  in  the  trial  of  each  case.  All  records  of 
such  proceedings  shall,  after  having  been  finally  acted  upon,  be 
transmitted  to  the  Judge- Advocate  General  of  the  Army. 

Art.  36.  Disposition  of  Records  —  Special  and  Summary 
Court-Martial. — After  having  been  acted  upon  by  the  officer  ap- 
pointing the  court  or  by  the  officer  commanding  for  the  time  being, 
the  record  of  each  trial  by  special  court-martial  and  a  report  of  each 
trial  by  summary  court-martial  shall  be  transmitted  to  such  general 
headquarters  as  the  President  may  designate  in  regulations,  there 


114  Digest  of  Davis'  Military  Law  of  the  U.  S. 

to  be  filed  in  the  office  of  the  judge-advocate.  When  no  longer  of 
use,  records  of  special  and  summary  courts  -  martial  may  be 
destroyed. 

Art.  37.  Irregularities  —  Effect  of.  —  The  proceedings  of  a 
court-martial  shall  not  be  held  invalid,  nor  the  findings  or  sentence 
disapproved,  in  any  case  on  the  ground  of  improper  admission  or 
rejection  of  evidence  or  for  any  error  as  to  any  matter  of  pleading  or 
procedure  unless  in  the  opinion  of  the  reviewing  or  confirming  au- 
thority, after  an  examination  of  the  entire  proceedings,  it  shall  ap- 
pear that  the  error  complained  of  has  injuriously  affected  the  sub- 
stantial rights  of  an  accused:  Provided,  That  the  act  or  omission 
upon  which  the  accused  has  been  tried  constitutes  an  offense  de- 
nounced and  made  punishable  by  one  or  more  of  these  articles: 
Provided  further.  That  the  omission  of  the  words  ^^hard  labor"  in 
any  sentence  of  a  court-martial  adjudging  imprisonment  or  confine- 
ment shall  not  be  construed  as  depriving  the  authorities  executing 
such  sentence  of  imprisonment  or  confinement  of  the  power  to  require 
hard  labor  as  a  part  of  the  punishment  in  any  case  where  it  is  au- 
thorized by  the  Executive  order  prescribing  maximum  punishments. 

Art.  38.  President  May  Prescribe  Rules. — The  President  may 
by  regulations,  which  he  may  modify  from  time  to  time,  prescribe 
the  procedure,  including  modes  of  proof,  in  cases  before  courts- 
martial,  courts  of  inquiry,  military  commissions,  and  other  military 
tribunals:  Provided,  That  nothing  contrary  to  or  inconsistent 
with  these  articles  shall  be  so  prescribed:  Provided  further.  That 
all  rules  made  in  pursuance  of  this  article  shall  be  laid  before  the 
Congress  annually. 

(e)      LIMITATIONS  UPON  PROSECUTIONS. 

Art.  39.  As  to  Time. — Except  for  desertion  committed  in  time 
of  war  or  for  mutiny  or  murder,  no  person  subject  to  mihtary  law 
shall  be  liable  to  be  tried  or  punished  by  a  court-martial  for  any 
crime  or  offense  committed  more  than  two  years  before  the  arraign- 
ment of  such  person :  Provided,  That  for  desertion  in  time  of  peace 
or  for  any  crime  or  offense  punishable  under  Articles  93  and  94  of  this 
code  the  period  of  limitations  upon  trial  and  punishment  by  court- 
martial  shall  be  three  years:  Provided  further.  That  tl  e  period  of 
any  absence  of  the  accused  from  the  jurisdiction  of  the  United 
States,  and  also  any  period  durins:  which  by  reason  of  som.e  manifest 


and  the  Manual  for  Courts-Martial  115 

impediment  the  accused  shall  not  have  been  amenable  to  military 
justice,  shall  be  excluded  in  computing  the  aforesaid  periods  of  limi- 
tation: And  provided  further.  That  this  article  shall  not  have  the 
effect  to  authorize  the  trial  or  punishment  for  any  crime  or  offense 
barred  by  the  provisions  of  existing  law. 

Art.  40.  As  to  Number. — No  person  shall  be  tried  a  second 
time  for  the  same  offense. 

(/)       PUNISHMENTS. 

Art.  41.  Certain  Kinds  Prohibited. — Punishment  by  flogging, 
or  by  branding,  marking,  or  tattooing  on  the  body,  is  prohibited. 

Art.  42.  *Places  of  Confinement — When  Lawful. — Except  for 
desertion  in  time  of  war,  repeated  desertion  in  tim.e  of  peace,  and 
mutin}^,  no  person  shall,  under  the  sentence  of  a  court-martial,  be 
punished  by  confinement  in  a  penitentiary  unless  an  act  or  omission 
of  which  he  is  comvicted  is  recognized  as  an  offense  of  a  civil  nature 
by  some  statute  of  the  United  States,  or  at  the  common  law  as  the 
same  exists  in  the  District  of  Columbia,  or  by  way  of  commutation 
of  a  death  sentence,  and  unless,  also,  the  period  of  confinement  au- 
thorized and  adjudged  by  such  court-martial  is  one  year  or  more: 
Provided,  That  when  a  sentence  of  confinemjent  is  adjudged  by  a 
court-m^.rtial  upon  conviction  of  two  or  more  acts  or  omissions  any 
one  of  which  is  punishable  under  these  articles  by  confinement  in  a 
penitentiary,  the  entire  sentence  of  confinement  may  be  executed 
in  a  penitentiary:  Provided  further.  That  penitentiary  confine- 
ment hereby  authorized  may  be  served  in  any  penitentiary  directly 
or  indirectly  under  the  jurisdiction  of  the  United  States:  Provided 
further.  That  persons  sentenced  to  dishonorable  discharge  and  to 
confinement  not  in  a  penitentiary  shall  be  confined  in  the  United 
States  Disciplinary  Barracks  or  elsewhere  as  the  Secretary  of  War 
or  the  reviewing  authority  may  direct,  but  not  in  a  penitentiary. 

Art.  43.  Death  Sentence — When  Lawful. — No  person  shall, 
by  general  court-martial,  be  convicted  of  an  offense  for  which  the 
death  penalty  is  made  mandatory  by  law,  nor  sentenced  to  suffer 
death  except  by  the  concurrence  of  two-thirds  of  the  members  of 
said  court-martial  and  for  an  offense  in  these  articles  expressly 
made  punishable  by  death.  All  other  convictions  and  sentences, 
whether  by  general  or  special  court-martial,  may  be  determined  by  a 
majority  of  the  members  present. 
*Effective  immediately. 


116  Digest  of  Davis'  Military  Law  of  the  U.  S. 

Art.  44.  Cowardice;  Fraud — Accessory  Penalty. — When  an 
officer  is  dismissed  from  the  service  for  cowardice  or  fraud,  t.ie  crime, 
punishment,  namie,  and  place  of  abode  of  the  delinquent  shall  be 
published  in  the  newspapers  in  and  about  the  camp  and  in  the  State 
from  which  the  offender  came  or  where  he  usually  resides,  and  after 
such  publication  it  shall  be  scandalous  for  an  officer  to  associate 
with  him. 

Art.  45.  Maximum  Limits. — Whenever  the  punishment  for  a 
crime  or  offense  made  punishable  by  these  articles  is  left  to  the  dis- 
cretion of  the  court-martial,  the  punishment  shall  not,  in  time  of 
peace,  exceed  such  limit  or  limits  as  the  President  may  from  time  to 
time  prescribe. 

(gr)       ACTION  BY  APPOINTING  OR  SUPERIOR  AUTHORITY. 

Art.  46.  Approval  and  Execution  of  Sentence. — No  sentence 
of  a  court-martial  sliall  be  carried  into  execution  until  the  same  shall 
have  been  approved  by  the  officer  appointing  the*  court  or  by  the 
officer  commanding  for  the  time  being. 

A^T.  47.     *Powers  Incident  to  Power  to  Approve. — The  power 
to  approve  the  sentence  of  a  court-martial  shall  be  held  to  include: 
(a)  The  power  to  approve  or  disapprove  a  finding  and  to  ap- 
prove only  so  much  of  a  finding  of  guilty  of  a  particular 
offense  as  involves  a  finding  of  guilty  of  a  lesser  iiicluded 
offense  w^hen,   in  the  opinion  of  the  authority  having 
power  to  approve,   the  evidence  of  record  requires   a 
finding  of  only  the  lesser  degree  of  guilt;  and 
(6)  The  power  to  approve  or  disapprove  the  whole  or  any  part 

of  the  sentence. 
Art.  48.     Confirmation — When  Required. — In  addition  to  the 
approval  required  by  Article  46,  confirmation  by  the  President  is 
required  in  the  following  cases  before  the  sentence  of  a  court-martial 
is  carried  into  execution,  namely: 

(a)  Any  sentence  respecting  a  general  officer; 
(6)  Any  sentence  extending  to  the  dismissal  of  an  officer,  except 
that  in  time  of  war  a  sentence  extending  to  the  dismissal 
of  an  officer  below  the  grade  of  brigadier  general  may  be 
carried  into  execution  upon  confirmation  by  the  com- 
manding general  of  the  army  in  the  field  or  by  the  com- 
manding general  of  the  territorial  department  or  division; 

*Effective  immediately. 


and  the  Manual  for  Courts-Martial  117 

(c)  Any  sentence  extending  to  the  suspension  or  dismissal  of  a 

cadet;  and 

(d)  Any  sentence  of  death,  except  in  the  cases  of  persons  con- 

victed in  time  of  war  of  murder,  rape,  mutiny,  desertion, 
or  as  spies;  and  in  such  excepted  cases  a  sentence  of  death 
may  be  carried  into  execution  upon  confirmation  by  the 
commanding  general  of  the  army  in  the  field  or  by  the 
commanding  general  of  the  territorial    department    or 
division. 
When  the  authority  competent  to  confirm  the  sentence  has  al- 
ready acted  as  the  approving  authority,  no  additional  confirmation 
by  him  is  necessary. 

Art.  49.     *Powers  Incident  to  Power  to  Confirm. — The  power 
to  confirm  the  sentence  of  a  court-martial  shall  be  held  to  include: 
(a)  The  power  to  confirm  or  disapprove  a  finding,  and  to  con- 
firm* so  much  only  of  a  finding  of  guilty  of  a  particular 
offense  as  involves  a  finding  of  guilty  of  a  lesser  included 
offense  when,  in  the  opinion  of  the  authority  having  power 
to  confirm,  the  evidence  of  record  requires  a  finding  of 
only  the  lesser  degree  of  guilt;  and 
(6)  The  power  to  confirm  or  disapi)rove  the  whole  or  any  part 

of  the  sentence. 
Art.  50.  Mitigation  or  Remission  of  Sentences. — The  power 
to  order  the  execution  of  the  sentence  adjudged  by  a  court-martial 
shall  be  held  to  include,  inter  alia,  the  power  to  mitigate  or  remit 
the  whole  or  any  part  of  the  sentence;  but  no  sentence  of  dismissal 
of  an  officer  and  no  sentence  of  death  shall  be  mitigated  or  remitted 
by  any  authority  inferior  to  the  President. 

Any  unexecuted  portion  of  a  sentence  adjudged  by  a  court- 
martial  may  be  mitigated  or  remitted  by  the  military  authority 
competent  to  appoint  for  the  command,  exclusive  of  penitentiaries 
and  the  United  States  Disciplinary  Barracks,  in  which  the  person 
under  sentence  is  held,  a  court  of  the  kind  that  imposed  the  sentence, 
and  the  same  power  may  be  exercised  by  superior  military  au- 
thority; but  no  sentence  extending  to  the  dismissal  of  an  officer  or 
loss  of  files,  no  sentence  of  death,  and  no  sentence  approved  or  con- 
firmed by  the  President  shall  be  remitted  or  mitigated  by  any  other 
authority. 


118  Digest  of  Davis'  Military  Law  of  the  U.  5*. 

The  power  of  remission  and  mitigation  shall  extend  to  all  un- 
collected forfeitures  adjudged  by  sentence  of  a  court-martial. 

Art.  51.  Suspension  of  Sentences  of  Dismissal  or  Death. — 
The  authority  compotent  to  order  the  execution  of  a  sentence  of 
dismissal  of  an  officer  or  a  sentence  of  death  may  suspend  such  sen- 
tence until  the  pleasure  of  the  President  be  known,  and  in  case  of 
such  suspension  a  copy  of  the  order  of  suspension,  together  with  a 
copy  of  the  record  of  trial,  shall  immediately  be  transmitted  to  the 
President. 

Art.  52.  Suspension  of  Sentence  of  Dishonorable  Discharge. 
— The  authority  competent  to  order  the  execution  of  a  sentence 
including  dishonorable  discharge  may  suspend  the  excution  of  the 
dishonorable  discharge  until  the  soldier's  release  from  confinement; 
but  the  order  of  suspension  may  be  vacated  at  any  time  and  the  exe- 
cution of  the  dishononorable  discharge  directed  by  the  officer  having 
general  court-martial  jurisdiction  over  the  commaifd,  exclusive  of 
penitentiaries  and  the  tJnited  States  Disciplinary  Barracks,  in  which 
the  soldier  is  held,  or  by  the  Secretary  of  War. 

Art.  53.  Suspension  of  Sentences  of  Forfeiture  or  Confine- 
ment.— The  authority  competent  to  order  the  execution  of  a  sen-- 
tence  adjudged  by  a  court-martial  may,  if  the  sentence  involve 
neither  dismissal  nor  dishonorable  discharge,  suspend  the  execution 
of  the  sentence  in  so  far  as  it  relates  to  the  forfeiture  of  pay  or  to  con- 
finement, or  to  both;  and  the  person  under  sentence  may  be  restored 
to  duty  during  the  suspension  of  confinement.  At  any  time  within 
one  year  after  the  date  of  the  order  of  suspension  such  order  may, 
for  sufficient  cause,  be  vacated  and  the  execution  of  the  sentence 
directed  by  the  military  authority  competent  to  order  the  execution 
of  like  sentences  in  the  command,  exclusive  of  penitentiaries  and  the 
United  States  Disciplinary  Barracks,  to  which  the  person  under 
sentence  belongs  or  in  which  he  may  be  found;  but  if  the  order  of 
suspension  be  not  vacated  within  one  year  after  the  date  thereof,  the 
suspended  sentence  shall  be  held  to  have  been  remitted. 
III.  Punitive  Articles. 
(a)     enlistment;  muster;  returns. 

Art.  54.  Fraudulent  Enlistment. — Any  person  who  shall  pro- 
cure himself  to  be  enlisted  in  the  military  service  of  the  United 
States  by  means  of  willful  misrepresentation  or  concealment  as  to 


and  the  Manual  for  Courts-Martial  119 

his  qualifications  for  enlistment,  and  shall  receive  pay  or  allowances 
under  such  enlistment,  shall  be  punished  as  a  court-martial  may 
direct. 

Art.  55.  Officer  Making  Unlawful  Enlistment. — Any  officer 
who  knowingly  enlists  or  musters  into  the  military  service  any 
person  whose  enlistment  or  muster  in  is  prohibited  by  law,  regula- 
tions, or  orders  shall  be  dismissed  from  the  service  or  suffer  such 
other  punishment  as  a  court-martial  may  direct. 

Art.  56.  Muster-RoUs — False  Muster. — At  every  muster  of 
a  regiment,  troop,  battery,  or  company  the  commanding  officer 
thereof  shall  give  to  the  mustering  officer  certificates,  signed  by 
himself,  stating  how  long  absent  officers  have  been  absent  and  the 
reasons  of  their  absence.  And  the  commanding  officer  of  every 
troop,  battery,  or  company  shall  give  like  certificates,  stating  how 
long  absent  non-commissioned  officers  and  private  soldiers  have 
been  absent  and  the  reasons  of  their  absence.  Such  reasons  and 
time  of  absence  shall  be  inserted  in  the  muster-rolls  opposite  the 
names  of  the  respective  absent  officers  and  soldiers,  and  the  certi- 
ficates, together  with  the  muster-rolls,  shall  be  transmitted  by  the 
mustering  officer  to  the  Department  of  War  as  speedily  as  the  dis- 
tance of  the  place  and  muster  will  admit.  Any  officer  who  know- 
ingly makes  a  false  muster  of  man  or  animal,  or  who  signs  or  directs 
or  allows  the  signing  of  any  muster-roll  knowing  the  same  to  contain 
a  false  muster  or  false  statement  as  to  the  absence  or  pay  of  an 
officer  or  soldier,  or  who  wrongfully  takes  money  or  other  considera- 
tion on  mustering  in  a  regiment,  company,  or  other  organization, 
or  on  signing  muster-rolls,  or  who  knowingly  musters  as  an  officer 
or  soldier  a  person  who  is  not  such  officer  or  soldier,  shall  be  dis- 
missed from  the  service  and  suffer  such  other  punishment  as  a 
court-martial  may  direct. 

Art.  57.  False  Returns — Omission  to  Render  Returns.  — 
Every  officer  commanding  a  regiment,  an  independent  troop,  bat- 
tery, or  company,  or  a  garrison,  shall,  in  the  beginning  of  every 
month,  transmit  through  the  proper  channels,  to  the  Department 
of  War,  an  exact  return  of  the  same,  specifying  the  names  of  the 
officers  then  absent  from  their  posts,  with  the  reasons  for  and  the 
time  of  their  absence.  Every  officer  whose  duty  it  is  to  render  to 
the  War  Department  or  other  superior  authority  a  return  of  the 
state  of  the  troops  under  his  command,  or  of  the  arms,  ammunition, 


120  Digest  of  Davis'  Military  Law  of  the  Ih  S. 

clothing,  funds,  or  other  property  thereunto  belonging,  who  know- 
ingly makes  a  false  return  thereof  shall' be  dismissed  from  the  service 
and  suffer  such  other  punishment  as  a  court-martial  may  direct; 
and  any  officer  who,  through  neglect  or  design,  omits  to  render  such 
return  shall  be  punished  as  a  court-martial  may  direct. 

ih)     desertion;  absence  without  leave. 

Art.  58.  Desertion. — Any  person  subject  to  military  law  who 
deserts  or  attempts  to  desert  the  service  of  the  United  States  shall, 
if  the  offense  be  committed  in  time  of  war,  suffer  death  or  such  other 
punishment  as  a  court-martial  may  direct,  and  if  the  offense  be  com- 
mitted at  any  other  time,  any  punishment,  excepting  death,  that  a 
court-martial  may  direct. 

Art.  59.  Advising  or  Aiding  Another  to  Desert. — Any  person 
subject  to  military  law  who  advises  or  persuades  or  knowingly  as- 
sists another  to  desert  the  service  of  the  United  States  shall,  if  the 
offense  be  committed  in  time  of  war,  suffer  death  or  such  other  pun- 
ishment as  a  court-martial  may  direct,  and  if  the  offense  be  com- 
mitted at  any  other  time,  any  punishment,  excepting  death,  that  a 
court-martial  may  direct. 

Art.  60.  Entertaining  a  Deserter. — Any  officer  who,  after 
having  discovered  that  a  soldier  in  nis  command  is  a  deserter  from 
the  military  or  naval  service  or  from  the  Marine  Corps,  retains  such 
deserter  in  his  command  without  informing  superior  authority  or  the 
commander  of  the  organization  to  which  the  deserter  belongs  shall 
be  punished  as  a  court-martial  may  direct. 

Art.  61.  Absence  without  Leave. — Any  person  subject  to 
military  law  who  fails  to  report  at  the  fixed  time  to  the  properly 
appointed  place  of  duty,  or  goes  from  the  same  without  proper 
leave,  or  absents  himself  from  the  command,  guard,  quarters,  sta- 
tion, or  camp  without  proper  leave,  shall  be  punished  as  a  court- 
martial  may  direct. 

(c)  disrespect;  insubordination;  mutiny. 
Art.  62.  Disrespect  Toward  the  President,  Vice-President, 
Congress,  Secretary  of  War,  Governors,  Legislatures. — Any  officer 
who  uses  contemptuous  or  disrespectful  words  against  the  President, 
Vice-President,  the  Congress  of  the  United  States,  the  Secretary  of 
War,  or  the  governor  or  legislature  of  any  State,  Territory,  or  other 


and  the  Manual  for  Courts-Martial  121 

possession  of  the  United  States  in  which  he  is  quartered  shall  be  dis- 
missed from  the  service  or  suffer  such  other  punishment  as  a  court- 
martial  may  direct.  Any  other  person  subject  to  military  law  who 
offends  shall  be  punished  as  a  court-martial  may  direct. 

Art.  63.  Disrespect  Toward  Superior  Officer. — Any  person 
subject  to  military  law  who  behaves  himself  with  disrespect  toward 
his  superior  officer  shall  be  punished  as  a  court-martial  may  direct. 

Art.  64.  Assaulting  or  Willfully  Disobeying  Superior  Officer. — 
Any  person  subject  to  mihtary  law  who,  on  any  pretense  whatso- 
ever, strikes  his  superior  officer  or  draws  or  lifts  up  any  weapon  or 
offers  any  violence  against  him,  being  in  the  execution  of  his  office, 
or  willfully  disobeys  any  lawful  command  of  his  superior  officer,  shall 
suffer  death  or  such  other  punishment  as  a  court-martial  may  direct. 

Art.  65.  Insubordinate  Conduct  Toward  Non-commissioned 
Officer. — Any  soldier  who  strikes  or  assaults,  or  who  attempts  or 
threatens  to  strike  or  assault,  or  willfully  disobeys  the  lawful  order 
of  a  non-commissioned  officer  while  in  the  execution  of  his  office,  or 
uses  threatening  or  insulting  language,  ot  behaves  in  an  insubor- 
dinate or  disrespectful  manner  toward  a  non-commissioned  officer 
while  in  the  execution  of  his  office,  shall  be  punished  as  a  court- 
martial  may  direct. 

Art.  66.  Mutiny  or  Sedition. — Any  person  subject  to  military 
law  who  attempts  to  create  or  who  begins,  excites,  causes,  or  joins  in 
any  mutiny  or  sedition  in  any  company,  p^rty,  post,  camp,  detach- 
ment, guard,  or  other  command  shall  suffer  death  or  such  other  pun- 
ishment as  a  court-martial  may  direct. 

Art.  67.  Failure  to  Suppress  Mutiny  or  Sedition. — Any  officer 
or  soldier  who,  being  present  at  any  mutiny  or  sedition,  does  not  use 
his  utmost  endeavor  to  suppress  the  same,  or  knowing  or  having 
reason  to  believe  that  a  mutiny  or  sedition  is  to  take  place,  does  not 
without  delay  give  information  thereof  to  his  commanding  officer, 
shall  suffer  death  or  such  other  punishment  as  a  court-martial  may 
direct. 

Art.  68.  Quarrels;  Frays;  Disorders. — All  officers  and  non- 
commissioned officers  have  power  to  part  and  quell  all  quarrels, 
frays,  and  disorders  among  persons  subject  to  military  law,  and  to 
order  officers  who  take  part  in  the  same  into  arrest,  and  other  persons 
subject  to  military  law  who  take  part  in  the  same- into  arrest  or  con- 
finement, as  circumstances  may  require,  until  their  proper  superior 


122  Digest  of  Davis'  Military  Law  of  the  U.  S. 

officer  is  acquainted  therewith.  And  whosoever,  being  so  ordered, 
refuses  to  obey  such  officer  or  non-commissioned  officer  or  draws  a 
weapon  upon  or  otherwise  threatens  or  does  violence  to  him  shall  be 
punished  as  a  court-martial  may  direct. 

{d)     arrest;  confinement. 

Art.  69.  Arrest  or  Confinement  of  Accused  Persons. — An  of- 
ficer charged  with  crime  or  with  a  serious  offense  under  these  articles 
shall  be  placed  in  arrest  by  the  commanding  officer,  and  in  excep- 
tional cases  an  officer  so  charged  may  be  placed  in  confinement  by 
the  same  authority.  A  soldier  charged  with  crime  or  with  a  serious 
offense  under  these  articles  shall  be  placed  in  confinement,  and  when 
charged  with  a  minor  offense  he  may  be  placed  in  arrest.  Any  other 
person  subject  to  military  law  charged  with  crime  or  with  a  serious 
offense  under  these  articles  shall  be  placed  in  confinement  or  in  arrest, 
as  circumstances  may  require;  and  when  charged  with  a  minor  offense 
such  person  may  be  placed  in  arrest.  Any  person  placed  in  arrest 
under  the  provisions  of  this  article  shall  thereby  be  restricted  to  his 
barracks,  quarters,  or  tent,  unless  such  limits  shall  be  enlarged  by 
proper  authority.  Any  officer  who  breaks  his  arrest  or  who  escapes 
from  confinement  before  he  is  set  at  liberty  by  proper  authority  shall 
be  dismissed  from  the  service  or  suffer  such  other  punishment  as  a 
court-martial  may  direct;  and  any  other  person  subject  to  military 
law  who  escapes  from  confinement  or  who  breaks  his  arrest  before 
he  is  set  at  liberty  by  proper  authority  shall  be  punished  as  a  court- 
martial  may  direct. 

Art.  70.  Investigation  of  and  Action  upon  Charges. — No  per- 
son put  in  arrest  shall  be  continued  in  confinement  more  than  eight 
days,  or  until  such  time  as  a  court-martial  can  be  assembled.  When 
any  person  is  put  in  arrest  for  tne  purpose  of  trial,  except  at  remote 
military  posts  or  stations,  the  officer  by  whose  order  he  is  arrested 
shall  see  that  a  copy  of  the  charges  on  which  he  is  to  be  tried  is 
served  upon  him  within  eight  days  after  his  arrest,  and  that  he  is 
brought  to  trial  within  ten  days  thereafter,  unless  the  necessities  of 
the  service  prevent  such  trial;  and  then  he  shall  be  brought  to  trial 
within  thirty  days  after  the  expiration  of  said  ten  days.  If  a  copy 
of  the  charges  be  not  served,  or  the  arrested  person  be  not  brought 
to  trial,  as  herein  required,  the  arrest  shall  cease.  But  persons  released 
from  arrest,  under  the  provisions  of  this  article,  may  be  tried,  when- 


and  the  Manual  for  Courts-Martial  123 

ever  the  exigencies  of  the  service  shall  permit,  within  twelve  months 
after  such  release  from  arrest:  Provided,  That  in  time  of  peace  no 
person  shall,  against  his  objection,  be  brought  to  trial  before  a 
general  court-martial  within  a  period  of  five  days  subsequent  to  the 
service  of  charges  upon  him. 

Art.  71.  Refusal  to  Receive  and  Keep  Prisoners. — No  pro- 
vost marshal  or  commander  of  a  guard  shall  refuse  to  receive  or 
keep  anv  prisoner  committed  to  his  charge  by  an  officer  belonging 
to  the  forces  of  the  United  States,  provided  the  officer  committing 
shall,  at  the  time,  deliver  an  account  in  writing,  signed  by  himself,  of 
the  crime  or  offense  charged  against  the  prisoner.  Any  officer  or 
soldier  so  refusing  shall  be  punished  as  a  court-martial  may  direct. 

Art.  72.  Report  of  Prisoners  Received. — Every  commander 
of  a  guard  to  whose  charge  a  prisoner  is  committed  shall,  within 
twenty-four  hours  after  such  confinement,  or  as  soon  as  he  is  re- 
lieved from  his  guard,  report  in  writing  to  the  commanding  officer 
the  name  of  such  prisoner,  the  offense  charged  against  him,  and  the 
name  of  the  officer  committing  him;  and  if  he  fails  to  make  such 
report,  he  shall  be  punished  as  a  court-martial  may  direct. 

Art.  73.  Releasing  Prisoner  without  Proper  Authority. — Any 
person  subject  to  military  law  who,  without  proper  authority,  re- 
leases any  prisoner  duly  committed  to  his  charge,  or  who  through 
neglect  or  design  suffers  any  prisoner  so  committed  to  escape,  shall 
be  punished  'as  a  court-martial  may  direct. 

Art.  74.  Delivery  of  Offenders  to  Civil  Authorities.  —  When 
any  person  subject  to  military  law,  except  one  who  is  held  by  the 
military  authorities  to  answer,  or  who  is  awaiting  trial  or  result  of 
trial,  or  who  is  undergoing  sentence  for  a  crime  or  offense  punishable 
under  these  articles,  is  accused  of  a  crime  or  offense  committed 
within  the  geographical  limits  of  the  States  of  the  Union  and  the 
District  of  Columbia,  and  punishable  by  the  laws  of  the  land,  the 
commanding  officer  is  required,  except  in  time  of  war,  upon  appHca- 
tion  duly  made,  to  use  his  utmost  endeavor  to  deliver  over  such  ac- 
cused person  to  the  civil  authorities,  or  to  aid  the  officers  of  justice 
in  apprehending  and  securing  him  in  order  that  he  may  be  brought 
to  trial.  Any  commanding  officer  who  upon  such  application  re- 
fuses or  willfully  neglects,  except  in  time  of  war,  to  deliver  over  such 
accused  person  to  the  civil  authorities,  or  to  aid  the  officers  of  justice 
in  apprehending  and  securing  him,  shall  be  dismissed  from  the 


124  Digest  of  Davis'  Military  Law  of  the  U.  S. 

service  or  suffer  such  other  punishment  as  a  court-martial  may 
direct. 

When,  under  the  provisions  of  this  article,  delivery  is  made  to 
the  civil  authorities  of  an  offender  undergoing:!:  sentence  of  a  court- 
martial,  such  delivery,  if  followed  by  conviction,  shall  be  held  to 
interrupt  the  execution  of  the  sentence  of  the  court-martial,  and 
the  offender  shall  be  returned  to  military  custody,  after  having 
answered  to  the  civil  authorities  for  his  offense,  for  the  completion 
of  the  said  court-martial  sentence. 

(e)       WAR  OFFENSES. 

Art.  75.  Misbehavior  Before  the  Enemy. — An  officer  or  soldier 
who  misbehaves  himself  before  the  enemy,  runs  away,  or  shamefully 
abandons  or  deUvers  up  any  fort,  post,  camp,  guard,  or  other  com- 
mand which  it  is  his  duty  to  defend,  or  speaks  words  inducing  others 
to  do  the  like,  or  casts  away  nis  arms  or  ammunition,  or  quits  nis 
post  or  colors  to  plunder  or  pillage,  or  by  any  means  whatsoever 
occasions  false  alarms  in  camp,  garrison,  or  quarters,  shall  suffer 
death  or  such  other  punishment  as  a  court-martial  may  direct. 

Art.  76.  Subordinates  Compelling  Commander  to  Surrender. 
— If  any  commanaer  of  any  garrison,  fort,  post,  camp,  guard,  or 
other  command  is  compelled,  by  the  officers  or  soldiers  under  his 
command,  to  give  it  up  to  the  enemy  or  to  abandon  it,  the  officers 
or  soldiers  so  offending  shall  suffer  death  or  such  other  punishment 
as  a  court-martial  may  direct. 

Art.  77.  Improper  Use  of  Coimtersigu. — Any  person  subject 
to  military  law  who  makes  known  the  parole  or  countersign  to  any 
person  not  entitled  to  receive  it  according  to  the  rules  and  discipline 
of  war,  or  gives  a  parole  or  countersign  different  from  that  which  he 
received,  shall,  if  the  offense  be  committed  in  time  of  war,  suffer 
death  or  such  other  punishment  as  a  court-martial  may  direct. 

Art.  78.  Forcing  a  Safeguard. — Any  person  subject  to  military 
law  who,  in  time  of  war,  forces  a  safeguard  shall  suffer  death  or  such 
other  punishment  as  a  court-martial  may  direct. 

Art.  79.  Captured  Property  to  Be  Secured  for  Public  Service. 
— All  public  property  taken  from  the  enemy  is  the  property  of  the 
United  States  and  shall  be  secured  for  the  service  of  the  United 
States,  and  any  person  subject  to  military  law  who  neglects  to 


and  the  Manual  for  Courts-Martial  125 

secure  such  property  or  is  guilty  of  wrongiful  appropriation  thereof 
shall  be  punished  as  a  court-martial  may  direct. 

Art.  80.  Dealing  in  Captured  or  Abandoned  Property. — Any 
person  subject  to  military  law  who  buys,  sells,  trades,  or  in  any  way 
deals  in  or  disposes  of  captured  or  abandoned  property,  whereby  he 
shall  receive  or  expect  any  profit,  benefit,  or  advantage  to  himself 
or  to  any  person  directly  or  indirectly  connected  with  himself,  or 
who  fails,  whenever  such  property  comes  into  his  possession  or  cus- 
tody or  within  his  control,  to  give  notice  thereof  to  the  proper  au- 
thority and  to  turn  over  such  property  to  the  proper  authority 
without  delay,  shall,  on  conviction  thereof,  be  punished  by  fine  or 
imprisonment,  or  by  such  other  punishment  as  a  court-martial, 
military  commission,  or  other  military  tribimal  may  adjudge,  or  by 
any  or  all  of  said  penalties. 

Art.  81.  Relieving,  Corresponding  with,  or  Aiding  the  Enemy. 
— Whosoever  relieves  the  enemy  with  arms,  ammunition,  supplies, 
money,  or  other  thing,  or  knowingly  harbors  or  protects  or  holds 
correspondence  with  or  gives  intelligence  to  the  enemy,  either  di- 
rectly or  indirectly,  shall  suffer  death  or  such  other  punishment  as  a 
court-martial  or  military  commission  may  direct. 

Art.  82.  Spies. — Any  person  who  in  time  of  war  shall  be 
found  lurking  or  acting  as  a  spy  in  or  about  any  of  the  fortifications, 
posts,  quarters,  or  encampments  of  any  of  the  armies  of  the  United 
States,  or  elsewhere,  shall  be  tried  by  a  general  court-martial  or  by  a 
militarj^  commission,  and  shall,  on  conviction  thereof,  suffer  death. 

(/)       MISCELLANEOUS  CRIMES  AND  OFFENSES. 

Art.  83.  Military  Property — Willful  or  Negligent  Loss,  Dam- 
age, or  Wrongful  Disposition  of. — Any  person  subject  to  mihtary 
law  who  willfully  or  through  neglect  suffers  to  be  lost,  spoiled,  dam- 
aged, or  wrongfully  disposed  of  any  military  property  belonging  to 
the  United  States  shall  make  good  the  loss  or  damage  and  suffer 
such  punishment  as  a  court-martial  may  direct. 

Art.  84.  Waste  or  Unlawful  Disposition  of  Military  Property 
Issued  to  Soldiers. — Any  soldier  who  sells  or  wrongfully  disposes  of, 
or  willfully  or  through  neglect  injures  or  loses,  any  horse,  arms,  am- 
munition, accouterments,  equipment,  clothing,  or  other  property 
issued  for  use  in  the  military  service  shall  be  punished  as  a  court- 
martial  may  direct 

Art.  85.     Drunk  on  Duty. — Any  officer  who  is  found  drunk  on 


126  Digest  of  Davis'  Military  Law  of  the  U.  S. 

duty  shall,  if  the  offense  be  committed  in  time  of  war,  be  dismissed 
from  the  service  and  suffer  such  other  punishment  as  a  court-martial 
may  direct;  and  if  the  offense  be  committed  in  time  of  peace,  he 
shall  be  punished  as  a  court-martial  may  direct.  Any  person  subject 
to  military  law,  except  an  officer,  who  is  drunk  on  duty  shall  be 
punished  as  a  court-martial  may  direct. 

Art.  86.  Misbehavior  of  Sentinel. — Any  sentinel  who  is  found 
drunk  or  sleeping  upon  his  post,  or  who  leaves  it  before  he  is  regularly 
relieved,  shall,  if  the  offense  be  committed  in  time  of  war,  suffer  death 
or  such  other  punishment  as  a  court-martial  may  direct;  and  if  the 
offense  be  committed  in  time  of  peace,  he  shall  suffer  any  punish- 
ment, except  death,  that  a  court-martial  may  direct. 

Art.  87.  Personal  Interest  in  Sale  of  Provisions. — Any  officer 
commanding  in  any  garrison,  fort,  barracks,  camp,  or  other  place 
where  troops  of  the  United  States  may  be  serving  who,  for  his  private 
advantage,  lays  any  duty  or  imposition  upon  or  is  interested  in  the 
sale  of  any  victuals  or  other  necessaries  of  life  brought  into  such 
garrison,  fort,  barracks,  camp,  or  other  place  for  the  use  of  the  troops 
shall  be  dismissed  from  the  service  and  suffer  such  other  punishment 
as  a  court-martial  may  direct. 

Art.  88.  Intimidation  of  Persons  Bringing  Provisions. — Any 
person  subject  to  military  law  who  abuses,  intimidates,  does  violence 
to,  or  wrongfully  interferes  with  any  person  bringing  provisions, 
supplies,  or  other  necessaries  to  the  camp,  garrison,  or  quarters  of 
the  forces  of  the  United  States  shall  suffer  such  punishment  as  a 
court-martial  may  direct. 

Art.  89.  Good  Order  to  Be  Maintained  and  Wrongs  Re- 
dressed.— All  persons  subject  to  military  law  are  to  behave  them- 
selves orderly  in  quarters,  garrison,  camp,  and  on  the  march;  and 
any  person  subject  to  military  law  who  commits  any  waste  or  spoil, 
or  willfully  destroys  any  property  whatsoever  (unless  by  order  of  his 
commanding  officer),  or  commits  any  kind  of  depredation  or  riot, 
shall  be  punished  as  a  court-martial  may  direct.  Any  commanding 
officer  who,  upon  complaint  made  to  him,  refuses  or  omits  to  see 
reparation  made  to  the  party  injured,  in  so  far  as  the  offender's  pay 
shall  go  toward  such  reparation,  as  provided  for  in  Article  105,  shall 
be  dismissed  from  the  service,  or  otherwise  punished,  as  a  court- 
martial  may  direct' 

Art.  90.     Provoking  Speeches  or  Gestures.— No  person  subject 


and  the  Manual  for  Courts-Martial  127 

to  military  law  shall  use  any  reproachful  or  provoking  speeches  or 
gestures  to  another;  and  any  person  subject  to  military  law  who 
offends  against  the  provisions  of  this  article  shall  be  punished  as  a 
court-martial  may  direct. 

Art.  91.  Dueling. — Any  person  subject  to  military  law  who 
fights  or  promotes  or  is  concerned  in  or  connives  at  fighting  a  duel, 
or  who;  having  knowledge  of  a  challenge  sent  or  about  to  be  sent, 
fails  to  report  the  fact  promptly  to  the  proper  authority,  shall,  if  an 
officer,  be  dismissed  from  the  service  or  suffer  such  other  punishment 
as  a  court-martial  may  direct;  and  if  any  other  person  subject  to 
military  law,  shall  suffer  such  punishment  as  a  court-martial  may 
direct. 

Art.  92.  *Murder;  Rape. — Any  person  subject  to  military 
law  who  commits  murder  or  rape  shall  suffer  death  or  imprisonment 
for  life,  as  a  court-martial  may  direct;  but  no  person  shall  be  tried 
by  court-martial  for  murder  or  rape  committed  within  the  geo- 
graphical limits  of  the  States  of  the  Union  and  the  District  of  Co- 
lumbia in  time  of  peace. 

Art.  93.  Various  Crimes. — Any  person  subject  to  military 
law  who  commits  manslaughter,  mayhem,  arson,  burglary,  robbery, 
larceny,  embezzlement,  perjury,  assault  with  intent  to  commit  any 
felony,  or  assault  with  intent  to  do  bodily  harm  shall  be  punished 
as  a  court-martial  may  direct. 

Art.  94.  Frauds  Against  the  Government. — Any  person  subject 
to  military  law  who  makes  or  causes  to  be  made  any  claini  against 
the  United  States  or  any  officer  thereof,  knowing  such  claim  to  be 
false  or  fraudulent;  or 

Who  presents  or  causes  to  be  presented  to  any  person  in  tlie 
civil  or  military  service  thereof,  for  approval  or  payment,  any  claim 
against  the  United  States  or  any  officer  thereof,  knowing  such  claim 
to  be  false  or  fraudulent;  or 

Who  enters  into  any  agreement  or  conspiracy  to  defraud  the 
United  States  by  obtaining,  or  aiding  others  to  obtain,  the  allowance 
or  payment  of  any  false  or  fraudulent  claim;  or 

Who,  for  the  purpose  of  obtaining,  or  aiding  others  to  obtain, 
the  approval,  allowance,  or  payment  of  any  claim  against  the  United 
States  or  against  any  officer  thereof,  makes  or  uses,  or  procures  or 
advises  the  making  or  use  of  any  writing  or  other  paper,  knowing 
the  same  to  contain  any  false  or  fraudulent  statements;  or 

♦Effective  immediately. 


128  Digest  of  Davis'  Military  Law  of  the  U.  S. 

Who,  for  the  purpose  of  obtaining,  or  aiding  others  to  obtain, 
the  approval,  allowance,  or  payment  of  any  claim  against  the  United 
States  or  any  officer  thereof  makes,  or  procures  or  advises  the  mak- 
ing of  any  oath  to  any  fact  or  to  any  writing  or  other  paper,  know- 
ing such  oath  to  be  false;  or 

Who,  for  the  purpose  of  obtaining,  or  aiding  others  to  obtain, 
the  approval,  allowance,  or  payment  of  any  claim  against  the 
United  States  or  any  officer  thereof,  forges  or  counterfeits,  or  pro- 
cures or  advises  the  forging  or  counterfeiting  of  any  signature  upon 
any  writing  or  other  paper,  or  uses,  or  procures  or  advises  the  use 
of  any  such  signature,  knowing  the  same  to  be  forged  or  counter- 
feited; or 

Who,  having  charge,  possession,  custody,  or  control  of  any 
money  or  other  property  of  the  United  States,  furnished  or  intended 
for  the  military  service  thereof,  knowingly  delivers  or  causes  to  be 
delivered,  to  any  person  having  authority  to  receive  the  same,  any 
amount  thereof  less  than  that  for  which  he  receives  a  certificate  or 
receipt;  or 

Who,  being  authorized  to  make  or  deliver  any  paper  certifying 
the  receipt  of  any  property  of  the  United  States  furnished  or  in- 
tended for  the  military  service  thereof,  makes  or  delivers  to  any 
person  such  writing,  without  having  full  knowledge  of  the  truth  of 
the  statements  therein  contained  and  with  intent  to  defraud  the 
United  States;  or 

Who  steals,  embezzles,  knowingly  and  willfully  misappropriates, 
applies  to  his  own  use  or  benefit,  or  wrongfully  or  knowingly  sells 
or  disposes  of  any  ordnance,  arms,  equipmients,  ammunition,  cloth- 
ing, subsistence  stores,  money,  or  other  property  of  the  United 
States  furnished  or  intended  for  the  miUtary  service  thereof;  or 

Who  knowingly  purchases  or  receives  in  pledge  for  any  obliga- 
tion or  indebtedness  from  any  soldier,  officer,  or  other  person  who 
is  a  part  of  or  employed  in  said  forces  or  service  any  ordnance, 
arms,  equipment,  ammunition,  clothing,  subsistence  stores,  or  other 
property  of  the  United  States,  such  soldier,  officer,  or  other  person 
not  having  lawful  right  to  sell  or  pledge  the  same; 

Shall,  on  conviction  thereof,  be  punished  by  fine  or  imprison- 
ment or  by  such  other  punishment  as  a  court-martial  may  adjudge, 
or  by  any  or  all  of  said  penalties.  And  if  any  person,  being  guilty 
of  any  of  the  offenses  aforesaid  while  in  the  mihtary  service  of  the 


and  the  Manual  for  Courts-Martial  129 

United  States,  receives  his  discharge  or  is  dismissed  from  the  service, 
he  shall  continue  to  be  liable  to  be  arrested  and  held  for  trial  and 
sentence  by  a  court-martial  in  the  same  manner  and  to  the  same 
extent  as  if  he  had  not  received  such  discharge  nor  been  dismissed. 

Art.  95.  Conduct  Unbecoming  an  Officer  or  Gentleman. — Any 
officer  or  cadet  who  is  convicted  of  conduct  unbecoming  an  officer 
and  a  gentleman  shall  be  dismissed  from  the  service. 

Art.  96.  General  Article. — Though  not  mentioned  in  these 
articles,  ail  disorders  and  neglects  to  the  prejudice  of  good  order  and 
military  discipHne,  all  conduct  of  a  nature  to  bring  discredit  upon 
the  miUtary  service,  and  all  crimes  or  offenses  not  capital,  of  which 
persons  subject  to  mihtary  law  may  be  guilty,  shall  be  taken  cogniz- 
ance of  by  a  general  or  special  or  summary  court-martial,  according 
to  the  nature  and  degree  of  the  offense,  and  punished  at  the  discre 
tion  of  such  court. 

IV.     Courts  of  Inquiry. 

Art.  97.  When  and  by  Whom  Ordered. — A  court  of  inquiry  to 
examine  into  the  nature  of  any  transaction  of  or  accusation  or  im- 
putation against  any  officer  or  soldier  may  be  ordered  by  the  Presi- 
dent or  by  any  commanding  officer;  but  a  court  of  inquiry  shall  not 
be  ordered  by  any  commanding  officer  except  upon  the  request  of  the 
officer  or  soldier  whose  conduct  is  to  be  inquired  into. 

Art.  98.  Composition. — A  court  of  inquiry  shall  consist  of 
three  or  more  officers.  For  each  court  of  inquiry  the  authority 
appointing  the  court  shall  appoint  a  recorder.^ 

Art.  99.  Challenges. — Members  of  a  court  of  inquiry  may  be 
challenged  by  the  party  whose  conduct  is  to  be  inquired  into,  but 
only  for  cause  stated  to  the  court.  The  court  shall  determine  the 
relevancy  and  vaUdity  of  any  challenge  and  shall  not  receive  a  chal- 
lenge to  more  than  one  member  at  a  time.  The  party  whose  conduct 
is  being  inquired  into  shall  have  the  right  to  be  represented  before 
the  court  by  counsel  of  his  own  selection,  if  such  counsel  be  reason- 
ably available. 

Art.  100.  Oath  of  Members  and  Recorder. — The  recorder  of  a 
court  of  inquiry  shall  administer  to  the  members  the  following  oath: 
''You,  A.  B.,  do  swear  (or  affirm)  that  you  will  well  and  truly  ex- 
amine and  inquire,  according  to  the  evidence,  into  the  matter  now 
before  you,  Without  partiality,  favor,  affection,  prejudice,  or  hope 


130  Digest  of  Davis   Military  Law  of  the  U.S. 

of  reward.  So  help  you  God."  After  which  the  president  of  the 
court  shall  administer  to  the  recorder  the  following  oath:  ''You, 
A.  B.,  do  swear  (or  affirm)  that  you  will,  according  to  your  best 
abilities,  accurately  and  impartially  record  the  proceedings  of  the 
court  and  the  evidence  to  be  given  in  the  case  in  hearing.  So  help 
you  God." 

In  case  of  affirmation  the  closing  sentence  of  adjuration  will 
be  omitted, 

Art.  101.  Powers;  Procedure. — A  court  of  inquiry  and  the 
recorder  thereof  shall  have  the  same  power  to  summon  and  examine 
witnesses  as  is  given  to  courts-martial  and  the  judge-advocate 
thereof.  Such  witnesses  shall  take  the  same  oath  or  affirmation 
that  is  taken  by  witnesses  before  courts-martial.  A  reporter  or  an 
nterpreter  for  a  court  of  inquiry  shall,  before  entering  upon  his  du- 
ties, take  the  oath  or  affirmation  required  of  a  reporter  or  an  inter- 
preter for  a  court-martial.  The  party  whose  conduct  is  being  in- 
quired into,  or  his  counsel,  if  any,  shall  be  permitted  to  examine  and 
cross-examine  witnesses  so  as  fully  to  investiagte  the  circumstances 
in  question. 

Art.  102.  Opinion  on  Merits  of  Case. — A  court  of  inquiry 
shall  not  give  an  opinion  on  the  merits  of  the  case  inquired  into 
unless  specially  ordered  to  do  so. 

Art.  103.  Record  of  Proceedings  —  How  Authenticated.  — 
Each  court  of  inquiry  shall  keep  a  record  of  its  proceedings,  which 
shall  be  authenticated  by  the  signature  of  the  president  and  the  re- 
corder thereof,  and  he  forwarded  to  the  convening  authority.  In 
case  the  record  cannot  be  authenticated  by  the  recorder,  by  reason 
of  his  death,  disability,  or  absence,  it  shall  be  signed  by  the  president 
and  by  one  other  member  of  the  court. 

V.     Miscellaneous  Provisions. 

Art.  104.  Disciplinary  Powers  of  Commanding  Officers. — 
Under  s\ich  regulations  as  the  President  may  prescribe,  and  which 
he  may  from  time  to  time  revoke,  alter,  or  add  to,  the  commanding 
officer  of  any  detachment,  company,  or  higher  command  may,  for 
minor  offenses  not  denied  by  the  accused,  impose  disciplinary  pun- 
ishments upon  persons  of  his  command  without  the  intervention  of 
a  court-martial,  unless  the  accused  demands  trial  by  court-martial. 

The  disciplinary  punishments  authorized  by  this  article  may 


and  the  Manual  for  Courts-Martial  131 

include  admonition,  reprimand,  withholding  of  privileges,  extra 
fatigue,  and  restriction  to  certain  specified  limits,  but  shall  not  in- 
clude forfeiture  of  ^ay  or  confinement  under  guard.  A  person  pun- 
ished under  authority  of  this  article  who  deems  his  punishment 
unjust  or  disproportionate  to  the  offense  may,  through  the  proper 
chajnnel,  appeal  to  the  next  superior  authority,  but  may  in  the  mean- 
time be  required  to  undergo  the  punishment  adjudged.  The  com- 
manding officer  who  imposes  the  punishment,  his  successor  in  com- 
mand, and  superior  authority  shall  have  power  to  mitigate  or  remit 
any  unexecuted  portion  of  the  punishment.  The  imposition  and 
enforcement  of  discipUnary  punishment  under  authority  of  this 
article  for  any  act  or  omission  shall  not  be  a  bar  to  trial  by  court- 
martial  for  a  crime  or  offense  growing  out  of  the  same  act  or  omis- 
sion; but  the  fact  that  a  disciplinary  punishment  has  been  enforced 
may  be  shown  by  the  accused  upon  trial,  and  when  so  shown  shall 
be  considered  in  determining  the  measure  of  punishment  to  be 
adjudged  in  the  event  of  a  finding  of  guilty. 

Art.  105.  Injuries  to  Person  or  Property  —  Redress  of.  — 
Whenever  complaint  is  made  to  any  commanding  officer  that  damage 
has  been  done  to  the  property  of  any  person  or  that  his  property 
has  been  wrongfully  taken  by  persons  subject  to  military  law,  such 
complaint  shall  be  investigated  by  a  board  consisting  of  any  number 
of  officers  from  one  to  three",  which  board  shall  be  convened  by  the 
conimanding  officer  and  shall  have,  for  the  purpose  of  such  investi- 
gation, power  to  summon  witnesses  and  examine  them  upon  oath 
or  affirmation,  to  receive  depositions  or  other  documentary  evidence, 
and  to  assess  the  damages  sustained  against  the  responsible  par- 
ties. T\^  assessment  of  damages  made  by  such  board  shall  bejsub- 
ject  to  the  approval  of  the  commanding  officer,  and  in  the  amount 
approved  by  him  shall  be  stopped  against  the  pay  of  the  offenders. 
And  the  order  of  such  commanding  officer  directing  stoppages 
herein  authorized  shall  be  conclusive  on  any  disbursing  officer  for 
the  payment  by  him  to  the  injured  parties  of  the  stoppages  so 
ordered. 

Where  the  offenders  cannot  be  ascertained,  but  the  organiza- 
tion or  detachment  to  which  they  belong  is  known,  stoppages  to  the 
amount  of  damages  inflicted  may  be  made  and  assessed  in  such  pro- 
portion as  may  be  deemed  just  upon  the  individual  members  thereof 
who  are  shown  to  have  been  present  with  such  organization  or  de- 


132  Digest  of  Davis'  Military  Law  of  the  U.  S. 

tachment  at  the  time  the  damages  complained  of  were  inflicted  as 
determined  by  the  approved  findings  of  the  board. 

Art.  106.  Arrest  of  Deserters  by  Civil  Officials.— It  shall  be 
lawful  for  any  civil  officer  having  authority  under  the  laws  of  the 
United  States,  or  any  State,  Territory,  District,  or  possession  of 
the  United  States,  to  arrest  offenders,  summarily  to  arrest  a  deserter 
from  the  military  service  of  the  United  States  and  deliver  him  into 
the  custody  of  the  military  authorities  of  the  United  States. 

Art.  107.  Soldiers  to  Make  Good  Time  Lost. — Every  soldier 
who  in  an  existing  or  subsequent  enlistment  deserts  the  service  of 
the  United  States,  or  without  proper  authority  absents  himself  from 
his  organization,  stacion,  or  duty  for  more  than  one  day,  or  who  is 
confined  for  more  than  one  day  under  sentence,  or  while  awaiting 
triat  and  disposition  of  his  case,  if  the  trial  results  in  conviction,  or 
through  intemperate  use  of  drugs  or  alcoholic  liquor,  or  through 
disease  or  injury  the  result  of  his  own  misconduct,  renders  himself 
unable  for  more  than  one  day  to  perform  duty,  shall  be  liable  to 
serve,  after  his  return  to  a  full-duty  status,  for  such  period  as  shall, 
with  the  time  he  may  have  served  prior  to  such  desertion,  unau- 
thorized absence,  confinement,  or  inability  to  perform  duty,  amount 
to  the  full  term  of  that  part  of  his  enlistment  period  which  he  is  re- 
quired to  serve  with  his  organization  before  being  furloughed  to  the 
Army  reserve. 

Art.  108.  Soldiers  —  Separation  from  the  Service.  —  No  en- 
listed man,  lawfully  inducted  into  the  military  service  of  the  United 
States,  shall  be  discharged  from  said  service  without  a  certificate 
of  discharge,  signed  b}^  a  field  officer  of  the  regiment  or  other  organi- 
zation to  which  the  enhsted  man  belongs,  or  by  the  con^panding 
officer  when  no  such  field  officer  is  present;  and  no  enlisted  man 
shall  be  discharged  from  said  service  before  his  term  of  service  has 
expired,  except  by  order  of  the  President,  the  Secretary  of  War,  the 
commanding  officer  of  a  department,  or  by  sentence  of  a  general 
court-martial. 

Art.  109.     Oath  of  Enlistment. — At  the  tim.e  of  his  enhstment 

every  soldier  shall  take  the  following  oalh  or  affirmation :     ''I, , 

do  solemly  swear  (or  affirm)  that  I  will  bear  true  faith  and  allegiance 
to  the  United  States  of  America;  that  I  will  serve  them  honestly  and 
faithfully  against  all  their  enemies  whomsoever;  and  that  I  will 
obey  the  orders  of  the  President  of  the  United  States  and  the  orders 


and  the  Manual  for  Courts-Martial  133 

of  the  officers  appointed  over  me,  according  to  the  Rules  and  Articles 
of  War."     This  path  or  affirmation  may  be  taken  before  any  officer. 

Art.  110.  Certain  Articles  to  Be  Read  and  Explained.  —  Ar- 
ticles 1,  2,  and  29,  54  to  96,  inclusive,  and  104  to  109,  inclusive,  shall 
be  read  and  explained  once  every  six  months  to  the  soldiers  of  every 
garrison,  regiment,  or  company  in  the  service  of  the  United  States. 

Art.  111.  Copy  of  Record  of  Trial. — Every  person  tried  by  a 
general  court-martial  shall,  on  demand  therefor,  made  by  himself 
or  by  any  person  in  his  behalf,  be  entitled  to  a  copy  of  the  record  of 
that  trial. 

Art.  112.  Effects  of  Deceased  Persons — Disposition  of. — In 
case  of  the  death  of  any  person  subject  to  military  law,  the  com- 
manding officer  of  the  place  or  command  will  permit  the  legal  repre- 
sentative or  widow  of  the  deceased,  if  present,  to  take  possession 
of  all  his  effects  then  in  camp  or  quarters,  and  if  no  legal  representa- 
tive or  widow  be  present,  the  commanding  officer  shall  direct  a  sum- 
mary court  to  secure  all  such  effects;  and  said  summary  court  shall 
have  authority  to  convert  such  effects  into  cash,  by  public  or  private 
sale,  not  earlier  than  thirty  days  after  the  death  of  the  deceased,  and 
to  collect  and  receive  any  debts  due  decedent's  estate  by  local 
debtors;  and  as  soon  as  practicable  after  converting  such  effects  into 
cash  said  summary  court  shall  deposit  with  the  proper  officer  to  be 
designated  in  regulations,  any  cash  belonging  to  decedent's  estate, 
and  shall  transmit  a  receipt  for  such  deposit,  accompanied  by  any 
will  or  other  papers  of  value  belonging  to  the  deceased,  an  inventory 
of  the  effects  secured  by  said  summary  court,  and  a  full  account  of 
his  transactions  to  the  War  Department  for  transmission  to  the  Aud- 
itor for  the  War  Department  for  action  as  authorized  by  law  in  the 
settlement  of  the  accounts  of  deceased  officers  or  enlisted  men  of  the 
Army;  but  if  in  the  meantime  the  legal  representative  or  widow 
shall  present  himself  or  herself  to  take  possession  of  decedent's  estate, 
the  said  summary  court  shall  turn  over  to  him  or  her  all  effects  not 
sold  and  cash  belonging  to  said  estate,  together  with  an  inventory 
and  account,  and  make  to  the  War  Department  a  full  report  of 
his  transactions. 

The  provisions  of  this  article  shall  be  applicable  to  inmates  of 
the  United  States  Soldiers'  Home  who  die  in  any  United  States 
military  hospital  outside  of  the  District  of  Columbia  where  sent 
from  the  Home  for  treatment. 


134  Digest  of  Davis'  Military  Law  of  the  U.  S. 

ART./113.  Inquests. — When  at  any  post,  fort,  camp,  or  other 
place  garrisoned  by  the  mihtary  forces  of  the  United  States  and 
under  the  exclusive  jurisdiction  of  the  United  States,  any  person 
shall  have  been  found  dead  under  circumstances  which  appear  to 
require  investigation,  the  commanding  officer  will  designate  and 
direct  a  summary  court-martial  to  investigate  the  circumstances 
attending  the  death;  and  for  this  purpose  such  summary  court- 
martial  shall  have  power  to  summon  witnesses  and  examine  them 
upon  oath  or  affirmation.  He  shall  promptly  transmit  to  the  post 
or  other  commander  a  report  of  his  investigation  and  of  his  findings 
as  to  the  cause  of  the  death. 

Art.  114.  Authority  to  Administer  Oaths.  —  Any  judge- 
advocate  or  acting  jud ^-advocate,  the  president  of  a  general  or 
special  court-martial,  any  summary  court-martial,  the  judge- 
advocate  or  any  assistant  judge-advocate  of  a  general  or  special 
court-martial,  the  president  or  the  recorder  of  a  court  of  inquiry  or 
of  a  military  board,  any  officer  designated  to  take  a  deposition,  any 
officer  detailed  to  conduct  an  investigation,  and  the  adjutant  of  any 
command  shall  have  power  to  administer  oaths  for  the  purposes  of 
the  administration  of  military  justice  and  for  other  purposes  of 
military  administration;  and  in  foreign  places  where  the  Army  may 
be  serving  shall  have  the  general  powers  of  a  notary  public  or  of  a 
consul  of  the  United  States  in  the  administration  of  oaths,  the  exe- 
cution and  acknowledgment  of  legal  instruments,  the  attestation  of 
documents,  and  all  other  forms  of  notarial  acts  to  be  executed  by 
persons  subject  to  mihtary  law. 

Art.  115.  Appointment  of  Reporters  and  Interpreters. — Under 
such  regulations  as  the  Secretary  of  War  may  from  time  to  time 
prescribe,  the  president  of  a  court-martial  or  military  commission, 
or  a  court  of  inquiry  shall  have  power  to  appoint  a  reporter,  who 
shall  record  the  proceedings  of  and  testimony  taken  before  such 
court  or  commission  and  may  set  down  the  same,  in  the  first  in- 
stance, in  shorthand.  Under  like  regulations,  the  president  of  a 
court-martial  or  military  commission,  or  court  of  inquiry,  or  a 
summary  court,  may  appoint  an  interpreter,  who  shall  interpret  for 
the  court  or  commission. 

Art.  116.  Powers  of  Assistant  Judge  -  Advocates.  —  An  as- 
sistant judge-advocate  of  a  general  court-martial  shall  be  competent 
to  perform  any  duty  devolved  by  law,  regulation,  or  the  custom  of 
the  service  upon  the  judge-advocate  of  the  court. 


and  the  Manual  for  Courts-Martial  135 

Art.  117.  Removal  of  Civil  Suits.  —  When  any  civil  suit  or 
criminal  prosecution  is  commenced  in  any  court  of  a  State  against 
any  officer,  soldier,  or  other  person  in  the  mihtary  service  of  the 
United  States  on  account  of  any  act  done  under  color  of  his  office 
or  status,  or  in  respect  to  which  he  claims  any  right,  title,  or  au- 
thority under  any  law  of  the  United  States  respecting  the  military 
forces  thereof,  or  under  the  law  of  war,  such  suit  or  prosecution 
may  at  any  time  before  the  trial  or  final  hearing  thereof  be  removed 
for  trial  into  the  district  court  of  the  United  States  in  the  district 
where  the  same  is  pending  in  the  manner  prescribed  in  Section  33 
of  the  act  entitled  ''An  act  to  codify,  revise,  and  amend  the  laws 
relating  to  the  judiciary,"  approved  March  3,  1911,  and  the  cause 
shall  thereupon  be  entered  on  the  docket  of  said  district  court  and 
shall  proceed  therein  as  if  the  cause  had  been  originally  commenced 
in  said  district  court  and  the  same  proceedings  had  been  taken  in 
such  suit  or  prosecution  in  said  district  court  as  shall  have  been  had 
therein  in  said  State  court  prior  to  its  removal,  and  said  district 
court  shall  have  full  power  to  hear  and  determine  said  cause. 

Art.  1 18.  Officers — Separation  from  Service. — No  officer  shall 
be  discharged  or  dismissed  from  the  service  except  by  order  of  the 
President  or  by  sentence  of  a  general  court-martial ;  and  in  time  of 
peace  no  officer  shall  be  dismissed  except  in  pursuance  of  the  sen- 
tence of  a  court-martial  or  in  mitigation  thereof;  but  the  President 
may  at  any  time  drop  from  the  rolls  of  the  Army  any  officer  who 
has  been  absent  from  duty  three  months  without  leave  or  who  has 
been  absent  in  confinement  in  a  prison  or  penitentiary  for  three 
months  after  final  conviction  by  a  court  of  competent  jurisdiction. 

Art.  119.  Rank  and  Precedence  Among  Regulars,  Militia,  and 
Volunteers. — That  in  time  of  war  or  public  danger,  when  two  or 
more  officers  of  the  same  grade  are  on  duty  in  the  same  field,  depart- 
ment, or  command,  or  of  organizations  thereof,  the  President  may 
assign  the  command  of  the  forces  of  such  field,  department,  or  com- 
mand, or  of  any  organization  thereof,  without  regard  to  seniority  of 
rank  in  the  same  grade.  In  the  absence  of  such  assignment  by  the 
President,  officers  of  the  same  grade  shall  rank  and  have  precedence 
in  the  following  order,  without  regard  to  date  of  rank  or  commission 
as  between  officers  of  different  classes — namely :  first,  officers  of  the 
regular  Army  and  officers  of  the  Marine  Corps  detached  for  service 
with  the  Army  by  order  of  the  President;  second,  officers  of  forces 


136  Digest  of  Davis'  Military  Law  of  the  U.  S. 

drafted  or  called  into  the  service  of  the  United  States;  and,  third, 
officers  of  the  volunteer  forces:  Provided,  That  officers  of  the  reg- 
ular Army  holding  commissions  in  forces  drafted  or  called  into 
the  service  of  the  United  States  or  in  the  volunteer  forces  shall 
rank  and  have  precedence  under  said  commissions  as  if  they  were 
commissions  in  the  regular  Army;  the  rank  of  officers  of  the  regular 
Army  under  commissions  in  the  National  Guard  as  such  shall  not, 
for  the  purposes  of  this  article,  be  held  to  antedate  the  acceptance 
of  such  officers  into  the  service  of  the  United  States  under  the 
commissions. 

Art,  120.  Command  When  Different  Corps  or  Commands 
Happen  to  Join. — When  different  corps  or  commands  of  the  military 
forces  of  the  United  States  happen  to  join  or  do  duty  together,  the 
officer  highest  in  rank  of  the  line  of  the  regular  Army,  Marine  Corps, 
forces  drafted  or  called  into  the  service  of  the  United  States,  or 
volunteers,  there  on  duty,  shall,  subject  to  the  provisions  of  the  last 
preceding  article,  command  the  whole  and  give  orders  for  what  is 
needful  in  the  service,  unless  otherwise  directed  by  the  President. 

Art.  121.  Complaints  of  Wrongs. — Any  officer  or  soldier  who 
believes  nimself  wronged  by  his  commanding  officer,  and,  upon  due 
apphcation  to  such  commander,  is  refused  redress,  may  complain  to 
the  general  commanding  in  the  locality  where  the  officer  against 
whom  tne  complaint  is  made  is  stationed.  The  general  shall  ex- 
amine into  said  complaint  and  take  proper  measures  for  redressing 
the  wrong  complained  of;  and  he  shall,  as  soon  as  possible,  transmit 
to  the  Department  of  War  a  true  statement  of  sucxi  complaint,  with 
the  proceedings  had  thereon. 

Sec  4.  The  provisions  of  Section  3  of  tnis  act  shall  taiie  effect 
and  be  in  force  on  and  after  March  1,  1917:  Provided,  That  Articles 
4,  13,  14,  15,  29,  42,  47,  49,  and  92  shall  take  effect  immediately 
upon  the  approval  of  this  act. 

Sec.  5.     That  all  offenses  committed  and  all  penalties,  forfeit-  - 
ures,  fines,  or  liabjhties  incurred  prior  to  the  taking  effect  of  this  act, 
under  any  law  embraced  in  or  modified,  changed,  or  repealed  by 
tnis  act,  may  be  prosecuted,  punished,  ana  enforced  in  the  same 
manner  and  with  the  same  effect  as  if  this  act  had  not  been  passed. 

Sec.  6.  AH  laws  and  parts  of  laws  in  so  far  as  they  are  in- 
consistent with  this  act  are  hereby  repealel. 

Approved  August  29,  1916. 


audi  the  Manual  for  Courts-Martial  137 


INDEX  TO  THE  ARTICLES  OF  WAR. 


Page 

I.  PreIvIMinary  Provisions 105 

Sec.  1342,  Revised  Statutes 105 

Art.     I.  Definitions 105 

Art.    2 .  Persons  subject  to  military  law 105 

II .  Courts-Martial 106 

Art.    3.  Courts- martial  classified 106 

(a)   Composition 106 

Art.    4.  Who  may  serve  on  courts- martial 106 

Art.    5 .  General  courts-martial 106 

Art.    6.  Special  courts-martial 107 

Art.    7 .  Summary  courts-martial 107 

ih)  By  whom  appointed 107 

Art.    8.  General  courts-martial 107 

Art.    9.  Special  courts-martial 107 

Art.  10.  Summary  courts-martial 107 

Art.  1 1 .  Appointment  of  judge-advocates 107 

(c)  Jurisdiction 108 

Art.  1 2 ,  General  courts-martial 108 

Art.  13.  Special  courts-martial 108 

Art.  14.  Summary  courts-martial 108 

Art.  15.  Not  exclusive 109 

Art.  16.  Officers,  how  triable 109 

{d)  Procedure 109 

Art.  1 7 .  Judge-advocate  to  prosecute 109 

Art.  18.  Challenges 109 

Art.  19.  Oaths 109 

Art.  20.  Continuances no 

Art.  21.  Refusal  to  plead no 


138  Digest  of  Davis'  Military  Law  of  the  U.  S. 

II.  Courts-Martial — Continued. 

(d)  Procedure — Continued.  Page 


Process  to  obtain  witnesses 

Refusal  to  appear  or  testify 

Compulsory  self-incrimination  prohibited - 

Depositions — when  admissible 

Depositions — before  whom  taken 

Courts  of  inquiry — records  of — when  admis- 
sible  

Resignation  without  acceptance  does  not  re- 
lease officer 

BnUstment  without  discharge 

Closed  sessions 

3 1 .  Order  of  voting 

Contempts 

Records — general  courts-martial 

Records — special  and  summary  courts-martial. 
Disposition  of  records — special  and  summary 

courts-martial ,__ 

Irregularities — effect  of 

President  may  prescribe  rules 

{e)  Limitations  upon  prosecutions 

Art.  39.  As  to  time 

Art.  40.  As  to  number 

(/)  Punishments 

Art.  41 .  Certain  kinds  prohibited 

Art.  42 .  Places  of  confinement — when  lawful 

Art.  43 .  Death  sentence — when  lawful 

Art.  44.  Cowardice;  fraud;  accessory  penalty 

Art.  45 .  Maximum  limits ^ 

{g)  A  ction  hy  appointing  or  superior  authority 

Art.  46.  Approval  and  execution  of  sentence 

Art.  47.  Powers  incident  to  power  to  approve 

Art.  48.  Confirmation — when  required 

Art.  49.  Powers  incident  to  power  to  confirm 

Art.  50.  Mitigation  or  remission  of  sentences 

Art.  51.  Suspension  of  sentences  of  dismissal  or  death 


Art. 

22. 

Art. 

23. 

Art. 

24. 

Art. 

25. 

Art. 

26. 

Art. 

27. 

Art. 

28. 

Art. 

29. 

Art. 

30. 

Art. 

31. 

Art. 

32. 

Art. 

33. 

Art. 

34- 

Art. 

36. 

Art. 

37. 

Art. 

38. 

and  the  Manual  for  Courts-Martial  139 

JI.  Courts-Martial — Continued.  Page 

(g)  Action  by  appointing  or  superior  authority — Continued. 

Art.  52.  Suspension  of  sentence   of   dishonorable   dis- 
charge  118 

Art.  53.  Suspension  of  sentences  of  forfeiture  or  con- 
finement   118 

III.  Punitive  Articles 118 

(a)  Enlistment;  muster;  returns 118 

Art.  54.  Fraudulent  enlistment 118 

Art.  55.  Officer  making  unlawful  enlistment 119 

Art.  56.  Muster  rolls — false  muster 119 

Art.  57.  False  returns — omission  to  render  returns 119 

(b)  Desertion;  absence  without  leave 120 

Art.  58.  Desertion 120 

Art.  59.  Advising  or  aiding  another  to  desert 120 

Art.  60.  Entertaining  a  deserter 120 

Art.  6r.  Absence  without  leave 120 

(c)  Disrespect;  insubordination;  mutiny 120 

Art.  62.  Disrespect  toward  the  President,  Vice-Presi- 
dent, Congress,  Secretary  of  War,  governors, 

legislatures ^_i2o 

Art.  63.  Disrespect  toward  superior  officers 121 

Art.  64.  Assaulting  or  willfully  disobeying  superior  of- 
ficer  121 

Art.  65.  Insubordinate  conduct  toward  noncommis- 
sioned officer 121 

Art.  66.  Mutiny  or  sedition 121 

Art.  67.  Failure  to  suppress  mutiny  or  sedition 121 

Art.  68.  Quarrels;  frays;  disorders 121 

(d)  A  rrest,  confinement 122 

Art.  69.  Arrest  or  confinement  of  accused  persons 122 

Art.  70.  Investigation  of  and  action  upon  charges 122 

Art.  71.  Refusal  to  receive  and  keep  prisoners 123 

Art.  72.  Report  of  prisoners  received 123 

Art.  73.  Releasing  prisoner  without  proper  authority __  123 
Art.  74.   Delivery  of  offenders  to  civil  authorities 123 


140  Digest  of  Davis'  Military  Law  of  the  U.  S. 

III.  Punitive  Articles — Continued.                                          Page 
(e)   War  offenses 124 

Art.  75 .  Misbehavior  before  the  enemy 124 

Art.  76.  Subordinates  compelling  commander  to  sur- 
render  124 

Art.  77.  Improper  use  of  countersign 124 

Art.  78.  Forcing  a  safeguard 124 

Art.  79.  Captured  property  to  be  secured  for  public 

service 124 

Art.  80.   Dealing  in  captured  or  abandoned  property- _  125 
Art.  81.  Relieving,  corresponding  with,  or  aichng  the 

enemy___. 125 

Art.  82.  Spies 125 

(/)  Miscellaneous  crimes  and  offenses 125 

Art.     83.  Military  property— willful  or  negligent  loss, 

damage,  or  wrongful  disposition  of 125 

Art.    84.  Waste   or   unlawful    disposition   of   military 

property  issued  to  soldiers 125 

Art.    85.  Drunk  on  duty 125 

Art.    86.  Misbehavior  of  sentinel 126 

Art.    87.  Personal  interest  in  sale  of  provisions 126 

Art.     88.  Intimidation  of  persons  bringing  provisions..  126 
Art,    89.  Good  order  to  be  maintained  and  wrongs  re- 
dressed   126 

Art.    90.  Provoking  speeches  or  gestures 126 

Art.    91.  Dueling 127 

Art.    92.  Murder — rape 127 

Art.    93.  Various  crimes 127 

Art.    94.  Frauds  against  the  Government 127 

Art.    95.  Conduct  unbecoming  an  officer  and  gentle- 
man  1 29 

Art.     96.  General  article 129 

IV.  Courts  of  Inquiry 129 

Art.     97.  When  and  by  whom  ordered 129 

Art.    98.  Composition 129 

Art.    99.  Challenges 129 

Art.  iQO.  Oath  of  members  and  recorder__^_^_^__^ 129 


and  the  Manual  for  Courts-Martial  141 

IV.  Courts  o^  Inquiry — Continued.  Page 

Art.  loi.  Powers;  procedure ^ 130 

Art.  102.  Opinion  on  merits  of  case 130 

Art.  103.  Record  of  proceedings — how  authenticated.  _  130 

V.  M1SCE1.LANEOUS  Provisions 130 

Art.  104.  DiscipHnary  powers  of  commanding  officers_i30 

Art.  105.  Injuries  to  person  or  property — redress  of 131 

Art.  106.  Arrest  of  deserters  by  civil  officials 132 

Art.  107.  Soldiers  to  make  good  time  lost 132 

Art.  1 08.  Soldiers — separation  from  the  service, 132 

Art.  109.  Oath  of  enlistment 132 

Art.  no.  Certain  articles  to  be  read  and  explained 133 

Art.  III.  Copy  of  record  of  trial 133 

Art.  112.  Effects  of  deceased  persons — disposition  of  __  133 

Art.  113.  Inquests 134 

Art.  114.  Authority  to  administer  oaths 134 

Art.  115.  Appointment  of  reporters  and  interpreters.- .134 

Art.  116.  Powers  of  assistant  judge-advocates 134 

Art.  117.  Removal  of  civil  suits 135 

Art.  118.  Officers — sej)aration  from  service 135 

Art.  119.  Rank  and  precedence  among  Regulars,  Mili- 
tia, and  Volunteers 135 

Art.  120.  Command  when  different  corps  or  commands 

happen  to  join 136 

Art.  121.  Complaints  of  wrongs 136 


Table  Showing  -Numbers  of  Corresponding  Articles. 

OLD   AND    NEW   CODES. 


Old 
num- 
ber. 

I 

2 

3 
4 
5 
6 

7 
8 

9 

lO 

1 1 

12 

13 
14 
15 
i6 

17 
i8 

19 

20 
21 
22 

23 
24 

25 
26 

27 
28 

29 

30 
31 


New 
num- 
ber. 


109,  no 

54 
108 
56 
56 
57 
57 
II 


56 
56 
56 

83 
84 
84 
87 
62 

63 

64 

66 

67 

68 

90 

91 

91 

91 

121 

121 

-61 


Old 

New 

Old 

num- 

num- 

num- 

ber. 

ber. 

ber. 

32 

61 

63 

33 

61 

64 

34 

61 

65 

35 

61 

66 

36 

67 

37 

68 

38 

85 

69 

39 

86 

70 

40 

61 

71 

41 

75 

*72 

42 

75 

*73 

43 

76 

74 

44 

77 

*75 

45 

81 

76 

46 

81 

77 

47 

58 

78 

48 

107 

79 

49 

28 

*8i 

50 

29,  60 

*82 

51 

59 

*83 

52 

84 

53 

85 

54 

89,  105 

86 

55 

89,  105 

87 

56 

88 

88 

57 

.  83 

89 

58 

92,93 

90 

59 

74 

91 

60 

2,  94 

92 

61 

95 

93 

62 

93,  96 

95 

New 

Old 

num- 

num- 

ber. 

ber. 
96 

2 

2 

97 

69 

98 

69 

99 

71 

100 

72 

lOI 

73 

102 

70 

103 

70 

104 

8 

105 

8 

106 

II 

107 

5 

108 

109 

4 

III 

4 

112 

16 

113 

6,9,  13,  14 

114 

6,9,  13,  14 

115 

13,  14 

116 

19 

117 

19 

118 

32 

119 

120 
121 

18 

21 

122 

17 

124 

25 

125 

19 

126 

20,  70 

127 

32 

128 

*01d  articles  72,  73,  75,  81,  82,  and 
of  March  2,  1913  (Public — No.  401,  pp. 
I,  1913- 


83  were  replaced  by  the  a< 
21  and  22),  efTective  Ju; 


THIS  BOOK  IS  DUE  ON  THE  LAST  DATE 
STAMPED  BELOW 

AN  INITIAL  FINE  OF  25  CENTS 

WILL  BE  ASSESSED  FOR  FAILURE  TO  RETURN 
THIS  BOOK  ON  THE  DATE  DUE.  THE  PENALTY 
WILL  INCREASE  TO  50  CENTS  ON  THE  FOURTH 
DAY  AND  TO  $1.00  ON  THE  SEVENTH  DAY 
OVERDUE. 


Its  '^"^ 


•*«., 


m^ 


MR  25  1942E 


^P»  17  1947 


Tt^K 


lO- 


MAR   28  1948 


-'.]ur,52Cf 


JUN4    ^9' 


y 


fj^ 


7b- 


■i 


U-C- BERKELEY  LIBRARIES 


CD^7asb5^7 


^fc 

^^M 


